Anthony Mutuku Musyoki v Crown Industries Limited [2016] KEELRC 892 (KLR)
The bottom line
#A Kenyan court ruled a redundancy was unfair because the employer skipped required one-month notice to the worker and the Ministry of Labour.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy complied with Section 40 of the Employment Act
The termination was unprocedural and unfair because the Claimant was not notified at least one month in advance and the Ministry of Labour was not notified
The court found that the employer gave the Claimant a termination letter dated 16th August 2013 with immediate effect without prior personal notice and without notifying the Ministry of Labour as Section 40(1)(b) requires. The respondent's witness admitted there was no letter informing the Labour Officer and that the Claimant was not personally notified. Non-compliance rendered the termination procedurally unfair, entitling the Claimant to recompense.
Length of service for purposes of severance pay
The Claimant served from 1st April 2011 only, having failed to prove employment from 2004
Although the Claimant alleged employment from 2004 with the Respondent's predecessor, he produced no documents proving employment prior to the letter of appointment dated 1st April 2011. The court therefore computed severance pay for only 2 completed years, at 15 days' pay per year under Section 40(1)(g), based on the monthly salary of Kshs. 11,270/-.
Whether the terminal dues paid were correct
The Respondent applied the wrong salary figure, arriving at an erroneous computation, leaving balances due
The Respondent computed dues on Kshs. 9,800/- ignoring the house allowance of Kshs. 1,470/-, making the correct monthly salary Kshs. 11,270/-. The court recalculated notice pay, severance pay, salary for the month worked, pro rata leave and August 2013 overtime, offsetting the Kshs. 3,872.53/- absence deduction, and found a balance of Kshs. 1,470/- each on notice and severance payable.
Legal principles established
#- An employer declaring redundancy must comply with the conditions in Section 40 of the Employment Act, including notifying the employee personally in writing and the labour officer at least one month in advance
- Section 40 of the Employment Act places the burden on the employer to avail the Court of the reasons for the declaration of redundancy
Court orders
#- 1.Notice pay balance of Kshs. 1,470/-
- 2.Severance balance of Kshs. 1,470/-
- 3.Compensation for unfair dismissal being 3 months' salary Kshs. 33,810/-
- 4.Costs of the suit
- 5.Interest on the sums above at Court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act 2007; Article 2(5) of the Constitution invoked for international law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Mutuku Musyoki v Crown Industries Limited [2016] KEELRC 892 (KLR)", Case Analysis (2016). Cause No 1872 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/892/eng@2016-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.