Kenya Union of Domestic, Hotels, Educational Institutions and Hospital v B.O.M Chilchila Secondary School [2015] KEELRC 1561 (KLR)
The bottom line
#A Kenyan school's redundancy of 12 unionised workers was declared unlawful because the employer skipped mandatory redundancy procedures under Section 40 of the Employment Act, and the workers were reinstated with back pay.
What this practically means
#Executive summary
#Key legal issues
#Legality of the redundancy of the 12 employees
The redundancy was unlawful for want of compliance with Section 40 Employment Act, 2007, particularly paragraphs (a), (b) and (d).
The court set out Section 40 of the Employment Act and compared the respondent's conduct with its mandatory conditions. The respondent served redundancy notices without notifying the union and the labour officer as required, and without regard to the collective agreement on terminal benefits. The asserted Ministry of Education guideline on staff/pupil ratio did not cure the procedural breaches. Non-compliance with the statutory procedure alone doomed the redundancy.
Wrongful, unfair and unlawful termination
The termination was wrongful, unfair and unlawful; the respondent failed to prove valid and fair reasons under Sections 43 and 45 of the Employment Act.
Having found an illegitimate redundancy, the court examined whether the respondent demonstrated the reasons for termination and compliance with fair procedure. The restructuring rationale was not adequately proved in evidence, reasons were not communicated to the employees, and Section 45 fair-termination requirements were not met. The court inferred the redundancy may have been actuated by bad faith against union members.
Costs
Costs follow the event and were awarded to the claimant union against the respondent.
The court framed costs as the final issue, applied the general rule that costs follow the event, and, having allowed the claim in full on liability, ordered the respondent to bear the costs of the cause. This was consistent with the earlier consent order that costs in the interlocutory application be in the cause.
Legal principles established
#- An employer who fails to comply with the procedural and substantive requirements of Section 40 of the Employment Act renders the redundancy unlawful, irrespective of the merits or good intentions of the restructuring.
- Employers must realise internal designs of their establishment only within the confines of the law; good intentions do not excuse non-compliance.
Court orders
#- 1.The redundancy of the twelve (12) employees of the respondent be and is hereby declared unlawful.
- 2.The respondent be and is hereby ordered to reinstate the grievants without loss of benefits, promotion or other emoluements.
- 3.The respondent be and is hereby ordered to meet and pay the grievants salaries and allowances during the pendency of the unlawful redundancy.
- 4.The costs of this cause shall be borne by the respondent.
- Jurisdiction invoked
- Employment and labour relations dispute under Article 41 of the Constitution of Kenya, 2010 and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions and Hospital v B.O.M Chilchila Secondary School [2015] KEELRC 1561 (KLR)", Case Analysis (2015). Notice of Motion dated 4th December, 2014 with Memorandum of Claim of same date. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1561/eng@2015-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.