Peter Ochieng Songa v Jambo Grill Ltd [2014] KEELRC 1369 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suspension of the Claimant's services amounted to a redundancy constituting termination
The Claimant's employment was terminated on grounds of redundancy; it was not a mere temporary suspension since he was never recalled
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.
Whether the Respondent complied with Section 40 of the Employment Act in declaring the redundancy
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
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.
Whether the Claimant was entitled to the reliefs sought, including overtime compensation
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
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.
Legal principles established
#- A redundancy carried out without observing the conditions in Section 40 of the Employment Act is an unfair termination under Section 45
Court orders
#- 1.Five months' salary in compensation for unfair termination (Kshs. 35,000)
- 2.One month's salary in lieu of notice (Kshs. 7,000)
- 3.Severance pay for 5 years (Kshs. 17,500)
- 4.Total award of Kshs. 59,500 with interest at court rates from the date of the award until payment in full
- 5.Respondent to meet the costs of the case
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.