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ELRCPartially AllowedCause 924 of 2010· [2013] KEELRC 578 (KLR)

JANE I KHALECHI v OXFORD UNIVERSITY PRESS E.A. LTD [2013] KEELRC 578 (KLR)

Industrial Court of Kenya
8 February 2013
MMMonica Mbaru
3,397 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that an employer cannot hide a targeted dismissal behind 'redundancy' without following mandatory legal steps, and awarded six months' salary.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1993 until 30th June 2008 and rising to the position of Publicity Secretary, was issued with a termination letter dated 23rd May 2008 while on annual leave, on the ground that her position had been declared redundant following a re-organisation. She claimed the termination was discriminatory and procedurally improper, as she was the only employee affected out of a large department, her position was later filled under a different title, and she had earlier been transferred to the warehouse as a mailing assistant in what she termed a demotion. She sought declarations of unfair and discriminatory dismissal, twelve months' salary, reinstatement, general damages, costs and interest. The respondent defended the redundancy as a genuine re-organisation, asserting that she was the most junior secretary, that a counterpart was better qualified, and that lawful procedure and dues were applied. The court held that redundancy is a process affecting positions rather than employees, and that the conditions precedent in Section 40 of the Employment Act are mandatory. It found no evidence of consultations, records or criteria for selecting the claimant, no proper notification of the labour officer, and concluded the 23rd May 2008 letter communicated a predetermined decision. The termination was held procedurally and substantively unfair. Compensation equivalent to six months' salary (Kshs.339,954) was awarded under Section 49, together with costs and interest; reinstatement, the twelve months' salary claim and general damages were refused, the latter for want of supporting evidence.

Key legal issues

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01

Procedural and substantive fairness of the redundancy

Holding

The termination was both procedurally and substantively unfair; no fair process or documentation of the reorganisation was demonstrated and Section 40 conditions were not met

Reasoning

The re-organisation allegedly began in March 2008 but no records, consultations or criteria for selecting the claimant were produced. The Labour Officer was not notified as envisaged by law; the letter of 23rd May 2008 merely communicated a predetermined decision. The termination therefore failed both the procedure and reasonableness requirements of Sections 40 and 45 of the Employment Act.

p. 5
02

Discrimination

Holding

Section 5 places the burden of disproving discrimination on the employer, but the court did not make a specific award on this head

Reasoning

The court set out Section 5 of the Employment Act outlawing discrimination and stated the employer's burden of proof, but its final orders rested on unfair termination compensation; no distinct discrimination finding or award was made.

p. 6
03

Remedies

Holding

Six months' salary as compensation under Section 49, taking into account the Kshs.368,283/= already received; general damages refused

Reasoning

Having found unfair termination, the court turned to Section 49 of the Employment Act. It noted notice was issued and the claimant received Kshs.368,283/=, and awarded the equivalent of six months' salary (Kshs.339,954). General damages were refused for lack of evidence supporting the claim of shock and psychiatric harm.

p. 5

Legal principles established

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  • Redundancy is a process; the conditions in Section 40 of the Employment Act are mandatory, not optional for the employer
  • Positions, not employees, become redundant and the employer's reasons for redundancy are open to judicial scrutiny
  • An employer cannot merely cite re-organisation and single out an individual for termination without records and fair procedure
  • In discrimination claims under Section 5 of the Employment Act the employer bears the burden of proving discrimination did not occur

Court orders

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  1. 1.Compensation for unfair termination amounting to Kshs.339,954.00
  2. 2.Costs of the suit
  3. 3.Interest on the compensation and costs

Authorities

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Legislation

  • Employment ActSections 2, 5, 40, 45(2), 49
  • Labour Relations Act No. 14 of 2007Section 2
  • Industrial Court ActSection 12(3)(vi)

Cases cited (5)

  • Brighouse Limited v. Bilderbeck
    [1994] 2 ERNZ 243 [CA]
  • Chapman v. Goonvean & Rostowrack China Clay Limited
    [1973] 2 All ER
  • Polkey v. A.E. Dayton Services Limited
    1988 ICR 142 [HL]
  • Kenya Union of Domestic, Hotel, Education, Institutions and Allied Workers [KUDHEIHA] v. Rabai Road Primary School
    Cause Number 231 of 2010
  • Kenny v Preen
    [1962] 3 All ER 814, CA
Jurisdiction invoked
Industrial Court Act (the Court's jurisdiction under Section 12; Employment Act remedies under Section 49)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "JANE I KHALECHI v OXFORD UNIVERSITY PRESS E.A. LTD [2013] KEELRC 578 (KLR)", Case Analysis (2013). Cause 924 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/578/eng@2013-02-08

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