Caroline Atieno Osweta v Bake & Bite Mombasa Limited [2016] KEELRC 725 (KLR)
The bottom line
#A Kenyan court ruled a 'redundancy' was fake and a signed discharge form could not stop the employee from claiming compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid reason for termination - genuineness of the redundancy
The redundancy was not genuine; the Respondent had no valid reason for terminating the Claimant's employment, and the claimed restructuring collapsed after the Operations Manager left.
The certificate of service and NSSF letter were signed by Isaac Oburu as (Ag.) Human Resource Manager, undermining the claim that her position was absorbed. Oburu told the Court the Operations Manager from India left after three months and his position was abolished, so the new structure collapsed. The Court also disbelieved the Respondent's explanation of the compulsory leave, concluding there was an undisclosed reason for termination.
Whether the Respondent complied with Section 40 of the Employment Act on redundancy procedure
The Respondent failed to issue prior notice of the redundancy to the Claimant and did not notify the Labour Officer, rendering the termination procedurally unfair.
Relying on Thomas De La Rue v David Opondo Omutelema, the Court held there must be two separate notices in a redundancy. Although the Claimant was paid one month's salary in lieu of notice, there was no evidence of prior notice of the redundancy nor notification to the Labour Officer as required by law.
Effect of the discharge form signed by the Claimant on 9th November 2013
The discharge form does not bar the Claimant's claim; an employer cannot circumvent statutory obligations by waving a signed discharge.
The Claimant explained she signed the form to access her final dues, and the Court found no reason to disbelieve her. The Court cited settled jurisprudence that a form of discharge cannot be used by an employer to escape obligations under the law.
Quantum of compensation and terminal dues
The Claimant was awarded four months' salary in compensation plus Kshs. 60,000 for shortfall in notice pay and gratuity.
In fixing compensation at four months' salary, the Court considered the Claimant's length of service (under a year) and the Respondent's conduct in the termination transaction. It also awarded Kshs. 60,000 being the shortfall in notice pay and gratuity, entering judgment for a total of Kshs. 580,000 with interest and costs.
Legal principles established
#- An employer cannot rely on a signed form of discharge to circumvent statutory obligations owed to an employee.
- A redundancy requires two distinct notices - a general notice and a specific notice to affected employees - and one cannot replace the other.
- In redundancy terminations the court examines both compliance with Section 40 and whether the redundancy was genuine.
Court orders
#- 1.4 months' salary in compensation of Kshs. 520,000
- 2.Notice pay and gratuity shortfall of Kshs. 60,000
- 3.Total judgment of Kshs. 580,000 with interest at court rates from the date of judgment until payment in full
- 4.Claimant awarded costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Amos Kioko Musyoka & 7 others v Cmc Motors Group Limited [2022] KEELRC 1088 (KLR)[2022] KEELRC 1088 (KLR)3 Jan 2022
Cite this brief
#Cite this brief
Caselaw, "Caroline Atieno Osweta v Bake & Bite Mombasa Limited [2016] KEELRC 725 (KLR)", Case Analysis (2016). Memorandum of Claim dated 8th July 2014, filed 11th July 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/725/eng@2016-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.