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ELRCPartially AllowedCause No 2484 of 2012· [2014] KEELRC 993 (KLR)

Bernard Levoywa v Salina Transporters Limited [2014] KEELRC 993 (KLR)

Industrial Court of Kenya
19 May 2014
LNLINNET NDOLO
1,214 words in judgment
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The bottom line

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A Kenyan truck driver declared redundant without notice won compensation because his employer skipped the mandatory redundancy steps in the Employment Act.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a long distance driver from January 2007 at a monthly salary of Kshs. 19,000, claimed he was declared redundant in April 2012 without notice and sought notice pay, salary arrears, severance pay, general damages, a certificate of service and costs. The Respondent, despite admitting the employment, filed inconsistent pleadings - alleging lawful termination, voluntary departure, and desertion - and did not appear at the hearing despite due service, so the claim proceeded ex parte. The Court, per Linnet Ndolo J, adopted the Claimant's account that the termination was redundancy since the Respondent's conflicting pleadings were unconfirmed in evidence. Relying on Section 40 of the Employment Act, 2007, the Court enumerated the mandatory conditions for a fair redundancy and found no evidence of compliance with any of them, rendering the termination unfair under Section 45. Following Simon Muguku Gichigi v Taifa SACCO Society Limited, the Court held that the Claimant's signed terminal benefits certificate and discharge could not cure the employer's statutory non-compliance. The Court awarded four months' salary (Kshs. 76,000) as compensation for unfair termination, one month's salary in lieu of notice (Kshs. 19,000), severance pay at 15 days per completed year for four years (Kshs. 38,000), and salary for 12 days worked in April 2012 (Kshs. 7,600), totalling Kshs. 140,600, with interest at court rates from the date of the award until payment in full. The Claimant was also awarded costs. The claim for general damages of six months' salary was effectively replaced by the four months' compensation award.

Key legal issues

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01

Mode of termination where pleadings conflict

Holding

The Court adopted the Claimant's account that the termination was by way of redundancy, given the Respondent's conflicting unproven pleadings

Reasoning

The Respondent pleaded three inconsistent positions: legal termination, voluntary departure at the Claimant's request, and desertion. None were confirmed in evidence as the Respondent did not appear at the hearing despite due service. The Court therefore accepted the Claimant's sworn testimony that the lorry he drove was sold and he was declared redundant.

p. 2
02

Compliance with Section 40 of the Employment Act, 2007 in redundancy

Holding

Failure to meet the Section 40 conditions renders termination unfair under Section 45, and a discharge signed by the employee cannot cure non-compliance

Reasoning

Section 40 prescribes mandatory conditions: notice to the union or employee and the labour officer a month before termination, fair selection criteria, payment of leave, one month's notice or pay in lieu, and severance at 15 days' pay per completed year. There was no evidence of any compliance. Following Simon Muguku Gichigi v Taifa SACCO Society Limited, the signed terminal benefits certificate could not defeat the statutory entitlements.

p. 3

Legal principles established

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  • A signed discharge or terminal benefits certificate cannot cure an employer's failure to comply with statutory redundancy procedure

Court orders

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  1. 1.Award of 4 months' salary (Kshs. 76,000) in compensation for unfair termination
  2. 2.Award of 1 month's salary in lieu of notice (Kshs. 19,000)
  3. 3.Award of severance pay for 4 completed years of service (Kshs. 38,000)
  4. 4.Award of salary for 12 days worked in April 2012 (Kshs. 7,600)
  5. 5.Total award of Kshs. 140,600 with interest at court rates from the date of the award until payment in full
  6. 6.Claimant awarded costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 2 (definition of redundancy)
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 45
  • Labour Relations Act, 2007Section 2 (corresponding definition of redundancy)

Cases cited (1)

  • Simon Muguku Gichigi Vs Taifa SACCO Society Limited
    [2012] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court (first-instance employment claim)

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, "Bernard Levoywa v Salina Transporters Limited [2014] KEELRC 993 (KLR)", Case Analysis (2014). Cause No 2484 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/993/eng@2014-05-19

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