Nation Media Group Limited v Mugumo Munene

Under section 43(1) of the Employment Act the employer must prove the reasons for termination, failing which the termination is deemed unfair. The redundancy letter alluded to a reorganisation of the editorial department, but no evidence of that reorganisation, of the affected class of employees, or of selection based on seniority, skill, ability and reliability under section 40 was tendered. The evidential burden lay on the employer and was not discharged, so the trial court's finding of no valid grounds could not be faulted.

Section 40 requires written notice of intended redundancy at least a month in advance to the union or employee and the labour officer,eliciting consultation. The respondent was handed the letter and required to leave the office the same day. Following Maraga JA's exposition in Kenya Airways, notice precedes consultation, and consultation is imperative under the Employment Act and Labour Relations Act. The respondent had no opportunity to be heard or mitigate. The termination failed both substantive and procedural tests.

Section 49(1)(c) permits up to 12 months' gross salary as compensation. The guidelines in section 49(4) were considered; the respondent lost employment without notice in a most cavalier manner. The trial Judge articulated the basis of the award, satisfying the requirement in Ol Pejeta that reasons justify the award. Compensation is discretionary, distinct from terminal dues already paid, so the payment of dues does not enrich the employee unjustly or offset compensation.