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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 272 of 2010· [2014] KEELRC 1369 (KLR)

Peter Ochieng Songa v Jambo Grill Ltd [2014] KEELRC 1369 (KLR)

Industrial Court of Kenya
27 October 2014
1,415 words in judgment
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The bottom line

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A Kenyan court ruled that sending a worker home without following redundancy rules made his dismissal unfair, awarding him Kshs. 59,500 plus costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a cleaner from August 2004 and later promoted to steward and cook, reported back from annual leave on 30th September 2009 and was informed his services were no longer required. He sued for a declaration that his termination was unlawful and unfair, notice pay, service pay, overtime compensation and twelve months' salary as compensation. The Respondent attributed the cessation of employment to loss of business caused by construction of the Thika Super Highway, describing it as a temporary suspension of services, and denied liability for overtime, stating shifts and days off compensated for extra hours. The Court found the cessation amounted to redundancy, not temporary suspension, since the Claimant was never recalled while colleagues were. Applying Section 40 of the Employment Act, the Court held the Respondent failed to notify the Claimant personally, that the letter to the labour office came after the redundancy declaration, and that no selection criteria were applied. Following Francis Maina Kamau v Lee Construction, a redundancy that flouts Section 40 is unfair under Section 45. The Court awarded five months' salary in compensation, one month's salary in lieu of notice, and severance pay at 15 days' pay per completed year, totalling Kshs. 59,500, with interest at court rates from the date of the award. The overtime claim was dismissed for want of proof and the Respondent was ordered to pay costs.

Key legal issues

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01

Whether the suspension of the Claimant's services amounted to a redundancy constituting termination

Holding

The Claimant's employment was terminated on grounds of redundancy; it was not a mere temporary suspension since he was never recalled

Reasoning

The Respondent contended the employment was only temporarily discontinued and that witnesses were recalled when business improved. However, there was no evidence the Claimant was recalled alongside his colleagues. The Court therefore found that his services were terminated on account of redundancy, bringing the matter within Sections 2 and 40 of the Employment Act.

p. 3
02

Whether the Respondent complied with Section 40 of the Employment Act in declaring the redundancy

Holding

The Respondent failed to comply with Section 40: the Claimant was not personally notified, the labour office notification came after the redundancy, and no selection criteria were used

Reasoning

The internal memo of 9th October 2009 notified eight employees of suspension but excluded the Claimant, who was on leave. The notification to the District Labour Office was dated 19th October 2009, after the redundancy declaration, and could not amount to notice under Section 40. No criteria of seniority, skill, ability or reliability for selection were presented; instead, all employees on leave were sent away.

p. 3
03

Whether the Claimant was entitled to the reliefs sought, including overtime compensation

Holding

Five months' salary compensation, one month's notice pay and severance pay at 15 days per completed year were awarded; overtime compensation failed for want of proof

Reasoning

Flowing from the finding of unfair termination, the Court awarded five months' salary compensation and one month's salary in lieu of notice. Severance pay was granted at 15 days' pay per completed year under Section 40. The claim for overtime compensation for 4 hours per day was, however, not proved and was dismissed.

p. 3

Legal principles established

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  • A redundancy carried out without observing the conditions in Section 40 of the Employment Act is an unfair termination under Section 45

Court orders

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  1. 1.Five months' salary in compensation for unfair termination (Kshs. 35,000)
  2. 2.One month's salary in lieu of notice (Kshs. 7,000)
  3. 3.Severance pay for 5 years (Kshs. 17,500)
  4. 4.Total award of Kshs. 59,500 with interest at court rates from the date of the award until payment in full
  5. 5.Respondent to meet the costs of the case

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 40
  • Employment ActSection 45
  • Labour Relations ActSection 2 (corresponding definition of redundancy)

Cases cited (1)

  • Francis Maina Kamau Vs Lee Construction
    [2014] eKLR
Jurisdiction invoked
Jurisdiction of the Industrial Court over employment and labour relations disputes

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, "Peter Ochieng Songa v Jambo Grill Ltd [2014] KEELRC 1369 (KLR)", Case Analysis (2014). Cause No 272 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1369/eng@2014-10-27

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