[2017] KEELRC 740 (KLR)
The court found that the claimants were terminated on grounds that amounted to redundancy, but the respondent failed to justify the redundancy or demonstrate that the claimants were paid their redundancy dues. The respondent did not participate in the proceedings despite being served. The court held that the...
Source-derived case information.
- Citation
- [2017] KEELRC 740 (KLR)
- Parties
- Applicant: Kelvin Randu Katana; Applicant: Juma Odera Ademba; Respondent: Eastland Hotel Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 590 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimants; termination declared unfair and unprocedural.
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Redundancy, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kelvin Randu Katana
Applicant
Juma Odera Ademba
Applicant
Eastland Hotel Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the claimants' employment was unfair and unprocedural.
- 2 Whether the claimants were entitled to redundancy dues and compensation for unfair termination.
Ratio Decidendi
The court found that the claimants were terminated on grounds that amounted to redundancy, but the respondent failed to justify the redundancy or demonstrate that the claimants were paid their redundancy dues. The respondent did not participate in the proceedings despite being served. The court held that the employer bears the burden of proof for reasons of dismissal, and in the absence of any evidence or justification from the respondent, the court presumed the redundancy was unprocedural and the termination unfair. Consequently, the court awarded the claimants one month salary in lieu of notice, seven months salary for unfair termination, and costs of the suit.
Court Disposition
Judgment for the claimants; termination declared unfair and unprocedural.
Orders
- Respondent to pay each claimant one month salary in lieu of notice.
- Respondent to pay each claimant seven months salary for unfair termination.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE 590 OF 2015
KELVIN RANDU KATANA……….….........…1ST CLAIMANT
JUMA ODERA ADEMBA……………….......2ND CLAIMANT
VERSUS
EASTLAND HOTEL LIMITED………...............RESPONDENT
JUDGEMENT
1. This cause proceeded as undefended when the court became of the view that the respondent though served, failed to enter appearance and file a response to the claim.
2. As stated by this court before, the burden of proof of reasons for dismissal or termination lies with the employer. In the absence of the employer as is the case here the court will unless for good cause believe the employee.
3. According to the claimants they were employed by the respondent as food and beverage manager and cleaner respectively. The 1st claimant was employed on 26th February, 2014 while the 2nd was employed on 14th March, 2014. They were both dismissed in June 2014 which dismissal they claim was unfair and unprocedural.
4. By letters dated 1st and 21st May, 2014 the claimants were informed of termination of their services and the reasons for the termination to wit reorganization of food and beverage department for the 1st claimant and decline of business in respect of the 2nd claimant. It is therefore not correct that they were not informed of the reasons for their termination.
5. The claimants’ termination however appeared to have been a case of redundancy. The respondent did not appear before the court to justify the redundancy and confirm if the claimants were paid their redundancy dues.
6. The court will presume that the claimants were unproceduraly declared redundant hence unfairly terminated from employment. The court therefore enters judgement against the respondent as follows:
a. One month salary in lieu of notice
b. Seven months salary for unfair termination of services
c. Costs of the suit
7. Claimants to liase with the Registrar of the court to compute the actual figures due to each claimant.
8. It is so ordered.
Dated at Nairobi this 17th day of March, 2017
Abuodha J. N.
Judge
Delivered this 17th day of March, 2017
Abuodha J. N.
Judge
In the presence of:-
………………………….…for the Claimant
……………………………..for the Respondent.
Abuodha J. N.
Judge