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ELRCPartially AllowedCause No. 120 of 2010· [2013] KEELRC 834 (KLR)

Kenya Union Of Journalists And Allied Workers v Nation Media Group Limited [2013] KEELRC 834 (KLR)

Industrial Court of Kenya
24 September 2013
4,391 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled Nation Media Group's redundancy of two unionised journalists was unlawful because it bypassed the union and labour officer.

What this practically means

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Executive summary

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The Kenya Union of Journalists and Allied Workers sued Nation Media Group Limited on behalf of two grievants, Onesmus Musyoka Kilonzo and Rebecca Nandwa, both declared redundant in April 2009 following the discontinuation of the Daily Metro and a re-organization respectively. The Claimant sought reinstatement or, in the alternative, terminal dues and 12 months' salary compensation, alleging the redundancy breached section 40 of the Employment Act and Clause 18 of the CBA, and was victimization for union activities. The Respondent maintained the separations were mutual and by consent, that the Grievants accepted discharge terms unconditionally and were paid over and above statutory and CBA entitlements. The court, constituted afresh before Lady Justice Maureen Onyango after reconstitution from Justice Chemuttut, found the redundancy unlawful because neither the union nor the labour officer was notified, the Respondent having admitted this; consent could not displace the mandatory statutory procedure. It also found the redundancy wrongful in substance - no reason was given for Ms. Nandwa's selection and suitable positions existed - amounting to unfair termination under section 45. The victimization and discrimination claims failed for want of evidence. The court fixed Mr. Kilonzo's correct salary at Kshs.179,749.32 per an undisputed HR memo. Awarding leave travelling allowance, severance shortfalls, gratuity and nominal compensation of 4 and 3 months' salary respectively, and crediting sums already paid, it gave judgment for Kshs.3,622,112.10 for Mr. Kilonzo and Kshs.2,009,630.00 for Ms. Nandwa, each party to bear its own costs, payment within 30 days failing which interest at court rates would accrue.

Key legal issues

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01

Whether the redundancy complied with section 40 of the Employment Act and Clause 18 of the CBA

Holding

The redundancy was unlawful because the union was not notified of the intention to declare the Grievants redundant; the Respondent admitted non-compliance

Reasoning

Section 40(1) requires an employer, where the employee is a union member, to notify the union and the labour officer of the reasons for and extent of the intended redundancy at least one month before termination. Clause 18 of the CBA similarly required 30 days' notice to the union. The Respondent admitted in submissions that neither the Claimant nor the labour officer was notified. The court held the provisions mandatory and the union had to be involved in any redundancy consultations.

p. 6
02

Correct salary of the 1st Grievant at termination

Holding

The correct salary was Kshs.179,749.32 per April 2009, per an inter-office memo the Respondent did not dispute; benefits were to be computed at that rate

Reasoning

The Respondent's tabulation used Kshs.160,490, the April 2008 rate, whereas an inter-office memo from the Senior HR Manager dated 26th February 2009 set the new salary w.e.f April 2009 at Kshs.179,749.32. The Respondent did not deny the memo's authenticity. The court therefore found the Respondent had paid at the 2008 rate instead of the 2009 CBA rate.

p. 6
03

Whether the redundancies constituted unfair termination warranting compensation under sections 45 and 49 of the Employment Act

Holding

The redundancies were wrongful in substance and procedure and constituted unfair termination; nominal compensation awarded - 4 months' salary for Kilonzo and 3 months for Nandwa

Reasoning

The redundancy was unprocedural as neither the union nor the labour officer was notified. In substance, no reason was given for Ms. Nandwa's selection, and suitable positions existed which the Respondent later advertised. Considering section 49(4) factors, including ex gratia payments already made and the other awards, the court found nominal compensation reasonable.

p. 10
04

Victimization and discrimination for union activities

Holding

Not proved; no evidence was adduced that the Grievants held positions in the union or works committee

Reasoning

The Claimant alleged the Grievants were works committee officials targeted for union activities, but produced no evidence of their union positions. Allegations of duress in signing the discharge were likewise unproved as the Grievants did not testify.

p. 7

Legal principles established

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  • An employer must comply with the mandatory redundancy procedure in section 40 of the Employment Act and the CBA even where the separation is said to be by consent; once an employee is a union member, the union must be involved in redundancy consultations
  • The burden of complying with the law in a redundancy rests on the employer
  • A signature on a discharge/redundancy letter does not oust the court's jurisdiction to assess whether the redundancy complied with the law

Court orders

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  1. 1.Judgment for the Grievants against the Respondent: Kshs.3,622,112.10 for Mr. Kilonzo
  2. 2.Judgment for the Grievants against the Respondent: Kshs.2,009,630.00 for Ms. Nandwa
  3. 3.Each party shall bear its costs
  4. 4.Payment within 30 days from date of Judgment failing which interest shall accrue at court rates
Jurisdiction invoked
Industrial Court Act, jurisdiction over employment and labour relations disputes (Sections 12(3) and 49 of the Employment Act, 2007 applied)

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, "Kenya Union Of Journalists And Allied Workers v Nation Media Group Limited [2013] KEELRC 834 (KLR)", Case Analysis (2013). Cause No. 120 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/834/eng@2013-09-24

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