Linnet Ndolo v Registered Trustees of the National Council of Churches of Kenya [2014] KEELRC 817 (KLR)

Section 40(1) of the Employment Act requires two separate notices: notification of intention to declare redundancy at least one month prior (to the employee or union and the labour officer), and a termination notice. The claimant first learned of the redundancy from the termination letter itself, delivered at night on the day of the meeting. The urgency and unexplained circumstances raised doubt about the motive and lent credence to the claimant's allegation of malice, especially as only her position was substantively affected.

The court adopted the Court of Appeal's purposive interpretation that Sections 40(a) and 40(b) provide two different notification routes depending on union membership, but the same one-month notice period applies in both situations, since there is no rational reason for a non-union employee to receive shorter notice. The distinction is underpinned by Article 41(2)(c) of the Constitution and the voluntary nature of union membership under the Labour Relations Act.

Having found unfair termination, the court considered Section 49(4) factors: 20 years of service, the manner of termination, the position held and reasonable expectations, and awarded maximum compensation of 12 months' salary (Kshs.2,764,800/=). Anticipatory salary claims were rejected on the principle that remedies must redress economic injury proportionately and employees must mitigate; the claimant had moved on and could not receive both general damages and anticipatory salaries. SMEP claims failed because SMEP is a separate legal entity and the claimant was not its employee.