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ELRCPartially AllowedCause No 408 of 2012· [2012] KEELRC 206 (KLR)

RUTH IMBUKA V KOBLA AYUI [2012] KEELRC 206 (KLR)

Industrial Court (Employment and Labour Relations Court)
16 November 2012
OMOnesmus N. Makau
1,738 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a maid's redundancy was unfair because her employer skipped mandatory notice steps and couldn't prove she was paid, awarding Kshs.49,500 plus costs.

What this practically means

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Executive summary

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The claimant, a house maid employed from 22 February 2011 to 29 February 2012 to care for the respondent's quadruplets at a monthly salary of Kshs.9,000 plus housing, food and toiletries, sued for terminal dues alleging that she was dismissed on 29 February 2012 without notice, reasons or dues. The respondent denied liability, contending that the claimant was declared redundant when the children grew up, and admitted only severance pay of Kshs.4,500. The claimant testified that she worked long hours including Sundays without pay, was never paid for February 2012, and that the real reason for dismissal was her refusal to work unpaid on Sundays. The court framed two issues: whether the termination was unfair and wrongful, and what remedies followed. Applying Section 40 of the Employment Act 2007, the court found the redundancy unprocedural because the respondent failed to notify the claimant in writing and the labour officer one month before the intended termination, holding that non-membership of a trade union does not strip an employee of those protections. The respondent's claim to have paid February 2012 salary and one month's notice pay failed for want of evidence, the employer bearing the burden as custodian of employment records. The termination was held procedurally flawed and unfair under Section 45. On remedies, the court awarded one month's notice pay, February 2012 salary, service pay of Kshs.4,500 and three months' wages for unfair termination, totalling Kshs.49,500, declining the statutory maximum of twelve months on the view that the claimant could find comparable work within three months. The claimant received costs of the suit. The judgment is dated 16 November 2012, Nairobi.

Key legal issues

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01

Whether termination on account of redundancy complied with Section 40 of the Employment Act 2007

Holding

Termination was procedurally flawed and unfair because the employer did not notify the employee in writing and the labour officer one month before the redundancy

Reasoning

The court evaluated the respondent's declared redundancy against Section 40 of the Employment Act 2007. The employer admitted not notifying the area labour officer or the claimant in writing one month before the intended termination. Sections 40(1)(a) and (b) were read together so a non-unionised employee retains the same protections. No evidence proved payment of February 2012 salary or notice pay. The termination therefore failed Section 40 and was unfair under Section 45.

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02

Burden of proving payment of terminal dues

Holding

The employer, as custodian of employee records, bore the burden of proving the alleged payments and failed to discharge it

Reasoning

The claimant denied receiving her February 2012 salary, notice pay or severance pay. The respondent alleged payment of February 2012 salary plus one month's salary in lieu of notice but adduced no evidence of these payments. The court held that the employer is the custodian of employee records and must prove or disprove the employee's allegations in employment disputes. Absent proof, the payments were not established.

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03

Remedies for unfair termination under Sections 35, 49 and 50 of the Employment Act

Holding

Claimant awarded notice pay, February 2012 salary, service pay and three months' wages as compensation instead of the maximum twelve months

Reasoning

The court identified the remedies under Sections 35(5), 49 and 50 of the Employment Act, including service pay unless the employee is an NSSF member, pay in lieu of notice, salary arrears and up to twelve months' wages for unfair termination. The respondent admitted severance of Kshs.4,500 only. The court exercised discretion to award three months' wages because the claimant could plausibly secure comparable employment within three months.

p. 3

Legal principles established

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  • Sections 40(1)(a) and (b) of the Employment Act must be read together so that a non-unionised employee retains the right to notification of redundancy and protection of the labour office
  • The employer is the custodian of employment records and bears the burden of proving payments allegedly made to an employee

Court orders

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  1. 1.Award of Kshs.9,000.00 being one month's salary in lieu of notice
  2. 2.Award of Kshs.9,000.00 being salary for February 2012
  3. 3.Award of Kshs.4,500.00 being service pay at 15 days wages per year of service
  4. 4.Award of Kshs.27,000.00 being three months' salary for unfair termination
  5. 5.Total award of Kshs.49,500.00 to the claimant
  6. 6.Claimant to have costs of the suit, to be agreed or taxed

Authorities

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Legislation

  • Employment ActSection 40
  • Employment ActSection 40(1)(a)
  • Employment ActSection 40(1)(b)
  • Employment ActSection 45
  • Employment ActSection 35(5)
  • Employment ActSection 49
  • Employment ActSection 50
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "RUTH IMBUKA V KOBLA AYUI [2012] KEELRC 206 (KLR)", Case Analysis (2012). Cause No 408 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/206/eng@2012-11-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.