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ELRCPartially AllowedCause No 1308 of 2011· [2014] KEELRC 1385 (KLR)

Eunice Atieno Okoth v Our Lady of Nazareth Primary School [2014] KEELRC 1385 (KLR)

Industrial Court of Kenya
8 October 2014
LNLinnet Ndolo
1,616 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a teacher's 'reorganization' dismissal was unfair redundancy, awarding her compensation, severance pay, and costs.

What this practically means

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Executive summary

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The claimant, a Teacher and Pre-Unit Coordinator employed by the respondent school from 2003 until January 2011, claimed severance pay, leave pay, notice pay, compensation for unfair termination and a certificate of service after receiving one month's notice of termination on grounds of reorganization. The respondent contended the contract was terminable by one month's notice, that the claimant took leave during school holidays, that another employee was also affected by the reorganization, and that all terminal dues including an ex gratia payment were made. The court framed two issues: whether the termination was justifiable and fair, and whether the claimant was entitled to the reliefs sought. The court characterized the reorganization-based termination as redundancy under Section 2 of the Employment Act, 2007, and applied the principle that a court must inquire into the bona fides and reasonableness of a redundancy declaration. It found the government policy cited dated from 2003 and did not justify the termination, that no reason was given for not retaining the claimant as a Teacher, that no evidence supported the claims of advanced age and ill health, and that Section 40's redundancy procedure was not followed. The termination was held unfair under Section 45. The court awarded eight months' salary as compensation and severance pay at 15 days' salary for 8 completed years, totaling Kshs.267,768, ordered issuance of a certificate of service under Section 51, awarded costs to the claimant, and interest on the award from the date of the award until payment in full. Claims for notice pay and leave pay were refused.

Key legal issues

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01

Whether the termination on grounds of reorganization was a fair redundancy

Holding

The termination was unfair within the meaning of Section 45 of the Employment Act, 2007; the Respondent failed to establish a valid basis for the redundancy and did not comply with Section 40.

Reasoning

The cited Government policy on mainstreaming pre-primary education dated from 2003, eight years before termination. The positions of Teacher and Pre-Unit Coordinator could be held separately, and no reason was given for not retaining the Claimant as a Teacher. No evidence supported claims of advanced age or ill health, and there was no compliance with Section 40's conditions prior to termination. The termination soon after a revised appointment letter also lacked bona fides.

p. 4
02

Entitlement to terminal dues and reliefs

Holding

Claimant awarded 8 months' salary in compensation and severance pay at 15 days' salary per completed year for 8 years; notice pay and leave pay refused; certificate of service ordered.

Reasoning

Compensation was assessed taking into account the Claimant's length of service and the Respondent's conduct. Severance pay was awarded per completed years of service. Adequate notice having been given, notice pay was not due, and the leave claim failed because leave was taken during school holidays. A certificate of service was directed under Section 51 since the Claimant denied receiving one.

p. 4

Legal principles established

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  • The Court has a duty to inquire into the bona fides and reasonableness of any declaration of redundancy.
  • A termination by the employer on grounds of reorganization amounts to redundancy under the Employment Act, 2007.

Court orders

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  1. 1.8 months' salary in compensation for unfair termination of Kshs.178,512.00
  2. 2.Severance pay at 15 days' pay for 8 completed years of Kshs.89,256.00
  3. 3.Respondent directed to issue the Claimant with a certificate of service in accordance with Section 51 of the Employment Act, 2007
  4. 4.Respondent to meet the costs of the case
  5. 5.Award to attract interest at court rates from the date of the award until payment in full

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 40
  • Employment ActSection 45
  • Employment ActSection 51
  • Labour Relations ActSection 2 (corresponding definition of redundancy)

Cases cited (1)

  • Aviation and Allied Workers Union Vs Kenya Airways Limited & 3 Others
    [2012] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court (Employment Act, 2007)

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, "Eunice Atieno Okoth v Our Lady of Nazareth Primary School [2014] KEELRC 1385 (KLR)", Case Analysis (2014). Cause No 1308 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1385/eng@2014-10-08

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