[2019] KEELRC 563 (KLR)
The court found that the Respondent failed to comply with the mandatory redundancy procedures under section 40(1) of the Employment Act, 2007, as there was no evidence of written notification to the Claimant or the Labour Office, nor any selection criteria applied. The Respondent did not attend the hearing or rebut...
Source-derived case information.
- Citation
- [2019] KEELRC 563 (KLR)
- Parties
- Claimant: Noor Mohamed; Respondent: Dynamic Chemicals Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1920 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim partly allowed for unfair termination and breach of contract; claim for untaken leave dismissed as statute-barred.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Redundancy Procedure, Compensation for Dismissal, Overtime Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Noor Mohamed
Claimant
Dynamic Chemicals Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the termination of the Claimant's employment was unfair on account of redundancy.
- 2 Whether the Respondent complied with the statutory requirements for redundancy under section 40(1) of the Employment Act, 2007.
- 3 Whether the Claimant is entitled to compensation, pay in lieu of notice, and overtime pay.
Ratio Decidendi
The court found that the Respondent failed to comply with the mandatory redundancy procedures under section 40(1) of the Employment Act, 2007, as there was no evidence of written notification to the Claimant or the Labour Office, nor any selection criteria applied. The Respondent did not attend the hearing or rebut the Claimant's evidence, and thus the Claimant's testimony was accepted as unchallenged. The termination was therefore held to be unfair. The Claimant was awarded compensation equivalent to four months' gross wages, pay in lieu of notice, and overtime pay, as the claims were substantiated and unrebutted. The claim for untaken leave for 2011 was dismissed as statute-barred under...
Court Disposition
Claim partly allowed for unfair termination and breach of contract; claim for untaken leave dismissed as statute-barred.
Orders
- The Respondent shall pay the Claimant Kshs 50,196 as compensation for unfair termination.
- The Respondent shall pay the Claimant Kshs 10,912 as pay in lieu of notice.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1920 OF 2015
NOOR MOHAMED...................................................CLAIMANT
v
DYNAMIC CHEMICALS LIMITED.................RESPONDENT
JUDGMENT
1. Noor Mohamed (Claimant) instituted legal proceedings against Dynamic Chemicals Ltd (Respondent) alleging unfair termination of employment and breach of contract. He sought a total of Kshs 511,814/-.
2. The Respondent filed a Response and Counterclaim denying unfair termination of employment and breach of contract. No particulars of the Counterclaim were set out.
3. The Cause was heard on 11 July 2019. Despite service of hearing notice on 16 May 2019, the Respondent and its advocates on record did not attend the hearing.
4. The Claimant testified and filed his submissions on 29 July 2019. The Respondent did not file submissions.
Unfair termination of employment
5. The Claimant was employed as a security guard by the Starplast Ltd in 2011. He testified that Starplast Ltd changed its name to Dynamic Chemicals Ltd.
6. The Claimant testified that his employment was terminated on 5 February 2015 and that the termination was not preceded with a notice of termination or pay in lieu of notice. He also stated that no reasons were offered (he produced a copy of the letter of termination of employment and a recommendation letter).
7. The Claimant’s testimony was not interrogated (or rebutted as Respondent did not attend the hearing) and the Court will accept it as correct.
8. The Court has looked at a To Whom It May Concern letter issued to the Claimant on the date of termination and it gave the reason for separation as retrenchment.
9. The Court will also accept that the separation was on account of redundancy.
10. There was no evidence or documentation filed in Court to show that the conditions set out in section 40(1) of the Employment Act, 2007 were complied with by the Respondent (written notification one month in advance to the Claimant and Labour Office or selection criteria).
11. The Respondent failed to attend Court to discharge the burden required of it by sections 43 and 45 of the Employment Act, 2007.
12. The Court, therefore, concludes that the termination of the Claimant’s employment on account of redundancy was unfair.
Compensation
13. The Claimant served the Respondent for about 4 years and considering the length of service, the Court is of the view that the equivalent of 4 months gross wages as compensation would be appropriate (gross wage in December 2014 was Kshs 12,549/-).
Pay in lieu of notice
14. The Respondent did not give the Claimant the requisite notice and the Court holds that the Claimant is entitled to 1 month pay in lieu of notice (basic wage as of December 2014 was Kshs 10,912/-).
Breach of contract
Overtime
15. The Claimant alleged he worked overtime without remuneration from January 2014 to January 2015 and he sought a total of Kshs 336,128/-.
16. The averments by the Claimant on the working hours were not specifically traversed in the Response.The Claimant’s oral testimony in Court remained unrebutted, and the Court will allow the head of claim.
Untaken leave
17. Annual leave of at least 21 days is a statutory minimum.
18. The Claimant sought Kshs 12,549/- on account of leave for 2011. The Claimant did not disclose whether he sought for the leave and was denied to show a breach of contract on the part of the Respondent.
19. The Court also is of the view that this head of claim is caught up by the provisions of sections 28(4) and 90 of the Employment Act, 2007.
Conclusion and Orders
20. The Court finds and holds that the termination of the Claimant’s employment on account of redundancy was unfair and that the Respondent was in breach of contract/statute.
21. The Court awards the Claimant
(a) Compensation Kshs 50,196/-
(b) Pay in lieu of notice Kshs 10,912/-
(c) Overtime Kshs 336,128/-
TOTAL Kshs 397,236/-
22. Claimant to have costs on half scale.
Delivered, signed and dated in Nairobi on this 7th day of October 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr Mukeli instructed by Namada & Co. Advocates
For Respondent Liko & Anam Advocates
Court Assistant Lindsey