[2016] KEELRC 1656 (KLR)
The court found that the claimant was declared redundant without adherence to the procedural requirements set out in the Employment Act, including notice to the area labour officer and a hearing. The respondent failed to contest the claimant's evidence. As a result, the redundancy was deemed procedurally improper,...
Source-derived case information.
- Citation
- [2016] KEELRC 1656 (KLR)
- Parties
- Claimant: Regina Ndulu Kyalo; Respondent: Keitt Exporters Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1048 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed. Judgment entered for the claimant.
- Judges
- DI Wasike
- Legal Topics
- Redundancy Procedure, Unfair Termination, Wrongful Dismissal, Severance Pay, Notice Pay, Leave Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Regina Ndulu Kyalo
Claimant
Keitt Exporters Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's termination amounted to wrongful dismissal and unfair termination due to non-compliance with redundancy procedures.
- 2 Whether the claimant is entitled to compensation for unfair termination, notice pay, leave pay, and severance pay.
Ratio Decidendi
The court found that the claimant was declared redundant without adherence to the procedural requirements set out in the Employment Act, including notice to the area labour officer and a hearing. The respondent failed to contest the claimant's evidence. As a result, the redundancy was deemed procedurally improper, amounting to wrongful dismissal and unfair termination. The claimant, having worked for more than one month, was entitled to the protections and remedies available to regular employees, including notice pay, leave pay, severance pay, and compensation for unfair termination. The court awarded the claimant a total of Kshs.150,000, subject to statutory deductions.
Court Disposition
Claim allowed. Judgment entered for the claimant.
Orders
- Respondent to pay claimant Kshs.15,000 as one month's salary in lieu of notice.
- Respondent to pay claimant Kshs.30,000 as pay in lieu of leave.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1048 OF 2014
REGINA NDULU KYALO….………………………………….CLAIMANT
VERSUS
KEITT EXPORTERS LIMITED……….…………………….RESPONDENT
JUDGMENT
1. This cause proceeded as an undefended cause after the Court became persuaded that the respondent though served, neither filed any appearance nor a response to the claim.
2. In the memorandum of claim dated 24th June, 2014 the claimant avers that she was employed by the respondent as a general worker from January 2011 at a daily wage of Kshs.500/=. She worked until 5th October, 2013 when her supervisor, one Mrs. Mary Nduku informed her that the management had decided to dismiss her because there was work shortage. She contends among others that no notice of dismissal on account of shortage of work was issued to her area labour officer and that no hearing ever took place. The claimant therefore sought an order for compensation from the Court on account of what she felt was wrongful dismissal and unfair termination of services.
3. In her evidence in chief she reiterated the averments in the memorandum of claim and confirmed that the supervisor called some of them out including her and informed them that she had been instructed to reduce the workforce due to reduction of work. According to her, they were never paid their terminal dues and that during the period they worked, they never went on leave and that they were never paid overtime.
4. As stated here before, this matter proceeded as undefended hence the Court is disadvantaged by not having had the benefit of hearing the respondent’s version of events. However, from the brief testimony offered from the claimant, it would appear that the claimant was declared redundant and that her complaint is that the redundancy was done contrary to procedure laid down in the Employment Act. The respondent did not controvert this allegation hence the Court can only go by what the claimant has stated.
5. Improper declaration of redundancy amounts to wrongful dismissal and unfair termination of employment hence the remedies available for wrongful dismissal and unfair termination are applicable.
6. The claimant though was on daily wage, she had worked for the respondent for an aggregate period exceeding one month hence the termination of her services could only be done as if she was a regular employee.
7. The Court therefore awards her as follows:- Kshs.
a. One month’s salary in lieu of notice………...............................................………....15,000. 00
b. Pay in lieu of leave…………………………..........................................…………….30,000. 00
c. Severance pay at the rate of 15 days wages for each complete year of service…….15,000. 00
d. Six months salary as compensation for unfair termination of services…………………90,000. 00
150,000. 00
8. The award shall be subject to taxes and applicable statutory deductions
9. It is so ordered.
Dated at Nairobi this 5th day of February 2016
Abuodha J. N.
Judge
Delivered this 19th day of February 2016
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge