Elly Odhiambo v Osteria Group (K) Ltd & another [2016] KEELRC 590 (KLR)
The bottom line
#A Kenyan court ruled a cook's 'redundancy' dismissal unfair because the employer skipped legally required notice steps, awarding him over Kshs. 690,000.
What this practically means
#Executive summary
#Key legal issues
#Procedural and substantive fairness of termination effected as a redundancy
The termination was procedurally and substantively unfair because the Respondent failed to comply with sections 40, 43 and 45 of the Employment Act
The notice issued to the Claimant cited reduction of work, which is redundancy under section 2 of the Employment Act. Section 40 mandates notice to all employees and notification of the Labour Officer before any individual is singled out. The Respondent issued an instant individual notice without a general redundancy notice or Labour Officer notification, rendering the termination unfair.
Employer's duty to keep and produce employment records
The Respondent's failure to file employment records meant the Claimant's uncontroverted evidence on salary, overtime, and allowances was accepted
It is the employer's statutory duty to keep work records under the Employment Act. The Respondent called no evidence and filed no records; its statement of defence was bare. Consequently, the Claimant's testimony on salary of Kshs.13,000, overtime of 3 hours daily for 6 days a week, and lack of house allowance stood unchallenged and formed the basis of the awards.
Entitlement to severance pay
Severance pay is due where an employee is declared redundant without adherence to due process, computed at 15 days' pay per year of service
The court found the Claimant served from 5th June 2006 to 20th September 2011, a period of 5 full years. Because the termination was in substance a redundancy effected without the mandatory section 40 procedure, severance pay became payable based on the last gross salary for 15 days of each year of service.
Legal principles established
#- A redundancy affecting one employee must be preceded by a general notice to all employees and notification of the Labour Officer under section 40 of the Employment Act; singling out an individual employee without such notice is discriminatory and unfair
- An employer bears the duty to keep and produce employment records; failure to controvert an employee's evidence on salary, overtime and allowances means the employee's evidence is accepted
- An agreed salary below the statutory Wage Guidelines cannot be used to deny house allowance; freedom of contract cannot validate an illegality
Court orders
#- 1.Declared the Claimant was unfairly terminated by the respondent
- 2.Compensation awarded at Kshs.156,000.00 (12 months' pay)
- 3.Notice pay awarded at Kshs.13,000.00
- 4.Severance pay awarded at Kshs.32,500.00
- 5.House allowance awarded at Kshs.63,375.00
- 6.Overtime awarded at Kshs.419,538.00
- 7.Costs of the suit awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Cause referred for determination of employment claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elly Odhiambo v Osteria Group (K) Ltd & another [2016] KEELRC 590 (KLR)", Case Analysis (2016). Cause No. 1183 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/590/eng@2016-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.