Bernanrd Misawo Obora v Coca Cola Juices Kenya Limited [2015] KEELRC 846 (KLR)
The bottom line
#A Kenyan court ruled Coca Cola Juices unfairly made employees redundant by skipping legally required notices, even though it paid generous severance.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy declared by the Respondent complied with section 40 of the Employment Act
The redundancy was procedurally unfair: no notice was issued to the employees or properly to the Labour Officer, and termination letters dated 22 January 2014 predated the communication of the redundancy on 24 January 2014.
Section 40 prescribes mandatory conditions precedent: notice to employees and the Labour Officer stating reasons and extent of redundancy, selection criteria, and a termination notice. The Respondent admitted no notice was issued. Termination letters were written before the redundancy was even announced, showing the process was a fait accompli. The letter sent to the Labour Officer on 23 January 2014 did not serve the statutory purpose of enabling the office to advise on modalities and fair treatment.
Whether payment of enhanced severance pay (30 days per year worked instead of 15) and counselling services cured the procedural defects
No. The enhanced payment and counselling could not substitute for the mandatory statutory notices.
While paying double the statutory minimum severance was commendable, failure to issue notice is a serious omission of a legal requirement. Arranging counselling on the very day of termination showed the Respondent had prepared to terminate without notice. Such well-intended actions still resulted in an unfair labour practice.
What remedies flow from the finding of procedural unfairness
Compensation is due under section 49 of the Employment Act, assessed at one month's pay for each year served, subject to section 49(2), plus 50% of costs.
Upon a finding of unprocedural termination, compensation under section 49 is due. The unfair labour practice cannot be separated from the unfair termination for a separate damages award. Individual service periods dictated varying awards, and gross monthly pay as at 24 January 2014 was the basis of computation.
Legal principles established
#- The procedures for redundancy set out under section 40 of the Employment Act are mandatory conditions precedent, and failure to comply renders the termination inherently unprocedural and unfair.
- Payment of terminal dues above the legal minimum cannot cure failure to issue the notices required by section 40 of the Employment Act.
Court orders
#- 1.Judgment entered for the Claimants with compensation of one month's pay for each year served, per the schedule in paragraph 31(a) to (l)
- 2.Compensation made subject to the provisions of section 49(2) of the Employment Act
- 3.Claimants awarded 50% of their costs
- Jurisdiction invoked
- Industrial Court (Procedure) Rules, Rule 9 (consolidation of causes for hearing and disposal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernanrd Misawo Obora v Coca Cola Juices Kenya Limited [2015] KEELRC 846 (KLR)", Case Analysis (2015). Cause No. 758 of 2014 (consolidating Causes Nos. 754, 755, 756, 757, 759, 760, 764, 765, 1541, 1542 and 1543 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/846/eng@2015-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.