Sylvester Odour Oyile v Prime Fuels (Kenya) Limited [2013] KEELRC 625 (KLR)
The bottom line
#A Kenyan court ruled an employee's 'restructuring' dismissal was unfair because his employer skipped mandatory redundancy steps, awarding him over Kshs 2 million.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination on account of restructuring/redundancy
The respondent ignored every mandatory condition in section 40 of the Employment Act; no notification to the labour officer was shown and the claimant was not consulted, rendering the termination unfair contrary to sections 40, 41, 43 and 45 of the Act and Article 41 of the Constitution.
The court set out the seven mandatory steps for redundancy under section 40 and tested the respondent's conduct against each. The restructuring reason was unsupported by evidence; the labour officer was not notified; the claimant was not involved; and no hearing or representations were allowed before the decision to terminate, breaching the audi alteram partem rule embodied in section 41(2).
Whether the claimant refused transfer to the DRC
The assertion that the claimant refused deployment to the DRC was unsupported; he had validly travelled to the DRC and held a valid multiple-entry visa at the time of termination, so he was available to work there.
The claimant's uncontroverted sworn evidence showed he travelled to the DRC on the respondent's instructions, obtained a six-month multiple-entry visa valid until 21st August 2011, and was recalled for an approved eye operation paid for by the respondent. His termination in September 2011 could not therefore rest on refusal of the DRC posting, and the respondent adduced no evidence to the contrary.
Notice pay, severance, leave and salary dues
The claimant was entitled to one month's notice pay, severance at 15 days' pay per completed year for 13 years, 56 leave days, and salary for 19 days worked in September 2011, less amounts already received.
The court found no notice of at least one month was issued before termination despite a prior meeting. Leave days due are payable in cash. Severance was computed on 13 complete years of service at 15 days' pay per year, and the admitted payment of Kshs.1,190,981.00 was offset against the total award.
Legal principles established
#- An employer who terminates on grounds of redundancy/restructuring must comply with all conditions precedent in section 40 of the Employment Act, including notice to the labour officer, fair selection criteria, notice or pay in lieu, and severance pay of not less than 15 days per completed year of service.
- The obligation to hear an employee under section 41(2) of the Employment Act applies even where the employer is restructuring or declaring positions redundant.
- Labour is not a mere commodity; employees have a right to fair treatment at work under Article 41 of the Constitution.
Court orders
#- 1.A declaration that the claimant was unfairly terminated
- 2.Compensation at 10 months salary amounting to Kshs.1,688,460.00
- 3.Severance pay amounting to Kshs.1,097,499.00
- 4.One month notice pay amounting to Kshs.168,460.00
- 5.19 days worked in September 2011 amounting to Kshs.106,935.00
- 6.56 leave days amounting to Kshs.317,993.00
- 7.Total dues of Kshs.2,188,366.00 after offsetting the sum of Kshs.1,190,981.00 already received
- 8.The claimant be issued with a Certificate of Service by the Respondent within 14 days
- 9.Costs of the suit
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sylvester Odour Oyile v Prime Fuels (Kenya) Limited [2013] KEELRC 625 (KLR)", Case Analysis (2013). Cause No. 340 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/625/eng@2013-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.