Kenya Hotels and Allied Workers Union v Sheshe Beach Resort T/A Tabora Enterprises Limited & 2 others [2015] KEELRC 1304 (KLR)

The court held that the question was not whether Buffa was a Director at the material time but whether he was an Employer. Section 2 of the Employment Act defines an employer to include an agent, foreman, manager or factor of a company. Buffa's own evidence showed he inquired into the Respondent's debts including staff dues, commissioned auditors, received money from Italy to pay salaries and oversaw the business, effectively making the response for the absent Respondents.

Although the Respondents asserted they merely closed for the low season, an intention to reopen in July was never fulfilled and there was no evidence of reopening. The definition of redundancy in Section 2 covers involuntary loss of employment at the initiative of the Employer where services are superfluous. The loss was permanent and dictated by economic or operational reasons.

The Court had ordered the parties to meet with the Labour Office to compute redundancy dues. The Labour Officers examined employment records at the workplace and tabulated dues by consensus. The Respondents never questioned the Report and the Interested Party could not turn around and challenge matters agreed upon at that late stage. Objections on union membership and CBA validity were dilatory and never raised during the proceedings or conciliation.

The dispute was never about membership of the Employees in the Claimant Union or CBA validity; these were never challenged by the Respondents or Interested Party during proceedings or conciliation and were raised belatedly as dilatory tactics. Prematurity failed because the Claim was filed under a certificate of urgency certified by the Court, which cannot be the same thing as prematurity.