[2018] KEELRC 2443 (KLR)
The court found that the Respondent failed to provide evidence of genuine redundancy or compliance with statutory redundancy procedures under the Employment Act. The Respondent did not prove diminished business or follow the required process for redundancy, such as consultation and notice. The termination was...
Source-derived case information.
- Citation
- [2018] KEELRC 2443 (KLR)
- Parties
- Claimant: Harun Ng'ang'a; Claimant: Stephen Wanjohi; Claimant: Isaac Mbeche; Respondent: Signature Tours & Travels Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 12,13 & 14 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- judgment_for_claimants
- Judges
- J Rika
- Legal Topics
- Unfair Termination, Redundancy Procedure, Notice Pay, Compensation for Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harun Ng'ang'a
Claimant
Stephen Wanjohi
Claimant
Isaac Mbeche
Claimant
Signature Tours & Travels Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimants' employment was based on valid reasons and followed fair procedure.
- 2 Whether the Respondent complied with the statutory requirements for redundancy under the Employment Act.
- 3 Whether the Claimants are entitled to salary arrears, notice pay, compensation, house allowance, and public holiday pay.
Ratio Decidendi
The court found that the Respondent failed to provide evidence of genuine redundancy or compliance with statutory redundancy procedures under the Employment Act. The Respondent did not prove diminished business or follow the required process for redundancy, such as consultation and notice. The termination was therefore unfair for lack of valid reason and fair procedure. The Claimants were entitled to salary arrears, notice pay, and compensation for unfair termination, but not to house allowance or public holiday pay, as these claims were not substantiated. The court awarded each Claimant Kshs. 27,000 for salary arrears, Kshs. 18,000 for notice pay, and Kshs. 108,000 as compensation,...
Court Disposition
judgment_for_claimants
Orders
- Termination was unfair.
- The Respondent to pay each Claimant Kshs. 27,000 as salary arrears, Kshs. 18,000 as notice pay, and Kshs. 108,000 as compensation for unfair termination, totaling Kshs. 153,000 per Claimant.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 12 OF 2016
[CONSOLIDATED WITH CAUSE NUMBER 13 AND 14 BOTH OF 2016]
BETWEEN
1. HARUN NG’ANG’A
2. STEPHEN WANJOHI [CAUSE NUMBER 13]
3. ISAAC MBECHE [CAUSE NUMBER 14]….……..CLAIMANTS
VERSUS
SIGNATURE TOURS & TRAVELS LIMITED…......RESPONDENT
RIKA J
Court Assistant: Benjamin Kombe
D.N.Omari & Company Advocates for the Claimants
No appearance for the Respondent
________________________
JUDGMENT
1. The 3 Claimants filed 3 separate Claims against their former Employer, as indicated above. The Claims were consolidated, to be heard and determined under Cause Number 12 of 2016.
2. The Claimants state they were employed by the Respondent as Drivers in April 2014. They earned salaries of Kshs. 18,000 monthly. Their respective contracts of employment were terminated by the Respondent on 15th September 2015, on the ground that due to diminished business, the Respondent could not sustain the employment of the Claimants.
3. They state termination was not based on valid reasons. They ask the Court to grant them Judgment against the Respondent for:-
a. Salary arrears from August 2015 at Kshs. 36,000.
b. 2 months’ salary in lieu of notice at Kshs. 36,000.
c. House allowance at the rate of 15% of the basic salaries at Kshs. 64,800.
d. Public holidays for 7 years at Kshs. 28,800.
e. 12 months’ salary in compensation for unfair termination at Kshs. 216,000
Total…………Kshs. 345,600
f. Costs and interest.
4. The Respondent did not file Response to any of the Claims and did not participate in the proceedings. The Court ordered the Claims are considered and determined on the strength of the record. The Claimant confirmed the filing of his Submissions at the last mention in Court on 6th November 2017.
5. The Claimants submit they were employed in April 2014. They worked as Drivers, each earning a salary of Kshs. 18,000 monthly. Their contracts were terminated by the Respondent through a letter titled ‘Redundancy,’ dated 15th September 2015. The Respondent explained that due to reduced business, the Claimants’ positions had been rendered redundant. They were instructed to return all Respondent’s property in their possession, and would on clearance be paid August Salary, September Salary, Pro-rata annual leave, and 1 month salary in lieu of notice, all less statutory and contractual deductions. The Claimants submit the Respondent, in this letter, undertook to pay Claimants’ dues, but did not pay.
The Court Finds:-
6. The Respondent has not replied to the respective Claims. Its letter to the Claimants dated 15th September 2015, gave redundancy as the reason why Claimants’ contracts were terminated. It was alleged the Respondent experienced diminished business.
7. Without evidence from the Respondent, it cannot be said that the purported redundancy was a genuine ground justifying termination. It has not been shown that the Respondent experienced business downturn, to warrant terminating Claimants’ contracts. The Respondent did not prove the reason for termination as required under Section 43 of the Employment Act 2007. If indeed there was a redundancy situation, the record does not show that the Respondent followed the procedure laid down in Section 40 of the Employment Act 2007.
8. Termination was unfair for want of valid reason and fair procedure under Sections 41, 43 and 45 of the Employment Act.
9. The Claimants are granted August salary at Kshs. 18,000 each and salary of 15 days worked in September at Kshs. 9,000 – total Kshs. 27,000.
10. They are granted 1 month salary each in lieu of notice at Kshs. 18,000.
11. The Court is not persuaded that the salary paid to the Claimants did not comprise the housing element. There was no demand contained in the demand letters before action, on house allowance. The prayer for house allowance has not been established and is rejected.
12. All Claimants seek Public Holidays’ Pay, based on an unexplained 7 years of service. They did not work for 7 years. They worked for 1 year, 5 months. The prayer is declined.
13. They are granted the equivalent of 6 months’ salary each, in compensation for unfair termination at Kshs. 108,000.
14. Costs to the Claimants.
15. Interest granted at 14% per annum from the date of Judgment, till payment is made in full.
IN SUM, IT IS ORDERED:-
I. Termination was unfair.
II. The Respondent to pay each Claimant: arrears of salary at Kshs. 27,000; notice pay at Kshs. 18,000; equivalent of 6 months’ salary in compensation for unfair termination at Kshs. 108,000 – added up in each case, at Kshs. 153,000.
III. In total the Respondent shall pay to the Claimants Kshs. 153,000 x 3 = Kshs. 459,000.
IV. Costs to the Claimants.
V. Interest granted at 14% per annum from the date of Judgment till payment is made in full.
Dated and delivered at Mombasa this 16th day of February 2018.
James Rika
Judge