James Gitau Kamau & 9 others v Habo Group of Companies [2016] KEELRC 635 (KLR)
The bottom line
#Ten Mombasa workers won Kshs 1,014,862 after their employer failed to prove in court that their layoffs and dismissals were justified.
What this practically means
#Executive summary
#Key legal issues
#Whether the reasons for termination were valid and fair
The termination was not founded on a valid and fair reason because the respondent, who bore the burden of proof, called no witness to justify the terminations, and the claimants' evidence of replacement hires was unrebutted.
The employer pleaded a slump in tourism due to terrorism but adduced no evidence in support; pleadings without evidence are mere allegations. Although the court took judicial notice of the tourism slump, the claimants' testimony that new employees were hired to replace them was never rebutted, so the claimed redundancy was not proved on a balance of probability.
Whether the procedure followed for the redundant employees was fair
The procedure for the eight redundant employees was unfair for non-compliance with the mandatory requirements of section 40 of the Employment Act.
Section 40 requires at least one month's written notice to the employee (and union if applicable) and the Labour Officer, fair selection and payment of lawful dues including severance pay. No evidence was adduced to prove service of such notice or compliance with the other mandatory requirements, rendering the procedure unfair.
Whether the procedure followed for the 5th and 9th claimants (dismissed for misconduct/sent away) was fair
Their termination was procedurally unfair for breach of sections 35, 36 and 41 of the Employment Act.
Sections 35 and 36 require prior written notice of 28 days or payment of one month's salary in lieu, while section 41 mandates a personal hearing before termination for gross misconduct, conducted in the presence of another employee chosen by the accused employee. Neither notice nor hearing was accorded to the 5th and 9th claimants.
Whether the terminations were unfair
The dismissals of all the claimants were unlawful, unfair and wrongful under section 45(2) of the Employment Act.
Termination is unfair where the employer fails to prove both a valid and fair reason and a fair procedure. The employer called no witnesses and adduced no evidence on either limb, so unfairness was established on a balance of probability.
What reliefs should be granted
Each claimant was awarded one month's salary in lieu of notice, salary arrears as prayed, three months' salary as compensation for unfair termination, refund of in-house savings, and a certificate of service; claims for leave, public holidays, off days and severance were dismissed.
Under sections 49(1) and (4) of the Employment Act, the claimants were entitled to notice pay, accrued benefits and compensation. Three months' compensation was appropriate because the claimants did not contribute to their termination through misconduct and could reasonably secure alternative employment within three months.
Legal principles established
#- Under sections 43, 45(2) and 47(5) of the Employment Act, the burden of proving and justifying the reason for terminating an employee's services lies on the employer.
- Averments in pleadings unsupported by evidence remain mere allegations and cannot discharge the employer's burden of proof.
- Before declaring an employee redundant, an employer must comply with the mandatory requirements of section 40 of the Employment Act, including one month's notice to the employee and the Labour Officer, fair selection and payment of lawful dues plus severance pay.
- Termination for gross misconduct requires a prior written notice of 28 days (or payment in lieu) under sections 35 and 36, and a mandatory personal hearing in the presence of another employee chosen by the accused employee under section 41.
Court orders
#- 1.Judgment entered for the claimants against the respondent in the aggregate sum of kshs. 1,014,862
- 2.Each claimant to be issued with a certificate of service
- 3.Costs of the suit to the claimants
- 4.Interest on the decretal sum
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 40, 43, 45, 47(5), 49 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Gitau Kamau & 9 others v Habo Group of Companies [2016] KEELRC 635 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/635/eng@2016-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.