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ELRCDismissedCause No 815 of 2015· [2015] KEELRC 642 (KLR)

Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Aga Khan University Hospital Nairobi [2015] KEELRC 642 (KLR)

Industrial Court (Employment and Labour Relations Court)
16 July 2015
MMM. Mbaru
2,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to stop a fresh redundancy notice, holding that a new notice can follow a halted one and that contempt requires a separate procedure.

What this practically means

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Executive summary

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The Claimant union filed a Notice of Motion on 17th June 2015 seeking to stay a notice of intended redundancy dated 10th June 2015 and to restrain the Respondent from violating the Court's Ruling of 4th June 2015, which had stopped a redundancy process commenced by a notice dated 14th May 2015. The Claimant contended that the earlier notice had never been withdrawn to its members, that two notices were in existence, and that the Respondent had held consultative meetings in contempt of the Ruling. The Respondent, through the affidavit of Judith Oduge-Otieno, explained that following the Ruling of 4th June 2015 it withdrew the first statutory notice and issued a fresh notice dated 10th June 2015 directed at the Claimant union, non-union employees and the labour officer; it put consultation arrangements in place which the Claimant declined to attend, and it suspended all activities upon the ex parte orders of 17th June 2015. The Court identified two issues: violation of the 4th June 2015 Ruling and commencement of stopped consultative meetings. It held that violation of court orders must be pursued through a separate procedure, not this application. It found the 10th June 2015 notice was a valid new notice directed at the union, whose service on the union representing 543 members sufficed. Restating that an employer must prove redundancy reasons are valid, fair and based on operational requirements, the Court warned that terminating employment while a challenge was pending would amount to an unfair labour practice under section 46(h) of the Employment Act. The application was not allowed; the main suit was declared urgent and costs were in the cause.

Key legal issues

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01

Whether the Respondent violated the Ruling of 4th June 2015 by issuing a fresh redundancy notice and holding consultative meetings

Holding

No violation warranting the orders sought; the notice of 10th June 2015 was a new, valid notice directed at the Claimant union, and the process stopped by the earlier Ruling related only to the notice of 14th May 2015. Enforcement of court orders requires a separate procedure.

Reasoning

The Court found the 10th June 2015 notice was an invitation and notification of a redundancy process resulting from re-organisation, directed at the Claimant union with reference to the CBA, containing no reference to previous notices or consultations. Service of the withdrawal on the union directly, representing 543 members, was sufficient. Contempt/enforcement could not be addressed through this application but through separate legal procedure.

p. 4
02

Validity of the redundancy process and the employer's burden to justify it

Holding

The employer must justify the redundancy as valid and fair based on operational requirements, but the time to do so had not yet arrived as consultations had not taken place; proceeding to terminate while a challenge was pending would be an unfair labour practice under section 46(h) of the Employment Act.

Reasoning

Relying on Kenya Union of Domestic Hotels Educational Institutions & Hospitals Workers v Mombasa Sports Club, the Court restated that an employer must prove redundancy reasons are valid, fair and based on operational requirements. Section 46(h) bars dismissal for initiating legal proceedings. The Respondent was warned not to frustrate pending litigation, while the Claimant was directed to expedite the main suit.

p. 4
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Consequences of the Respondent's failure to file a defence

Holding

The Respondent has an absolute right not to defend the suit, but the legal consequence is that the Claimant shall proceed with its claim unopposed.

Reasoning

The Court noted the Claimant had made no effort to take a hearing date for the main suit as directed on 4th June 2015, and that failing to move the Court invites the Respondent to commence a new redundancy process. The Respondent's election not to file a defence does not bar the Claimant from moving the Court, but the claim will be undefended.

p. 4

Legal principles established

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  • An employer is required to prove that the reasons given for a redundancy are valid and fair and based on operational requirements.
  • Causing termination of employment when a suit challenging the anticipated termination is pending and stopped by the Court amounts to an unfair labour practice.
  • Statutory redundancy notices must be served directly on the union representing the affected employees; a purported withdrawal/second notice served on the union suffices to inform the membership of the withdrawn notice.

Court orders

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  1. 1.The application dated 17th June 2015 shall not be allowed
  2. 2.The issues raised in the main suit remain urgent and the Claimant should proceed as directed on 4th June 2015
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Employment ActSection 12(3)
  • Employment ActSection 20
  • Employment ActSection 40
  • Employment ActSection 46(h)
  • Industrial Court RulesRules 13(4), 16, 27, 24(5) and 36
  • Labour Relations ActSection 74
  • Employment and Labour Relations Court ActSection 13

Cases cited (3)

  • Kenya Union of Domestic Hotels Educational Institutions & Hospitals Workers versus Mombasa Sports Club
    Cause No. 440 of 2013
  • Thomas De La Rue versus David Opondo Omutelema
    [2013] eKLR
  • Kenya Airways Limited versus Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Sections 12(3) and 20 of the Employment Act and the Industrial Court Rules, including Rule 13(4), 16, 24(5) and 36; section 74 of the Labour Relations Act; section 13 of the Employment and Labour Relations Court Act considered

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, "Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) v Aga Khan University Hospital Nairobi [2015] KEELRC 642 (KLR)", Case Analysis (2015). Cause No 815 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/642/eng@2015-07-16

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