Andrew Waire Ndunu v Express Automation Limited [2016] KEELRC 895 (KLR)
The bottom line
#A Kenyan court ruled an employer's redundancy unlawful because it skipped required notifications, awarding the employee notice pay, leave dues, and six months' compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy declaration complied with Section 40 of the Employment Act
The redundancy was not in conformity with the law because the Claimant was not properly notified and the labour officer was not notified; the termination was therefore unlawful
Section 40 requires notification of the employee personally in writing and of the labour officer not less than a month before the termination on account of redundancy, plus payment of notice, leave and severance. The only letter was the dismissal letter of 31st March 2014, not copied to the labour officer. The Claimant had not received the payments envisaged under Section 40, so the redundancy failed statutory conformity.
Whether the Respondent proved the reasons for termination
The Respondent failed to prove the reasons; it was unclear whether it relied on redundancy or dismissal for cause, and it asserted it need not avail proof of employees declared redundant
The Respondent's pleadings and submissions vacillated between redundancy and dismissal for cause. Either way, Section 43 imposed a duty to prove valid reasons. The Respondent's stance that it need not produce the list of employees declared redundant was untenable, and no attachment showed the Claimant was responsible for the missing machine.
Quantum of remedies under Section 49
One month's salary in lieu of notice, leave dues, and six months' compensation awarded; no payment for the unexpired contract term
Remedies are guided by Section 49 and the conduct of the employer, which failed to notify the relevant officials, issue a certificate of service or pay service pay. Twelve months' compensation was excessive given the two-year contract, so six months was awarded. Notice pay and leave dues were granted as claimed.
Legal principles established
#- An employer cannot rely on redundancy as the reason for termination without complying with the notification requirements of Section 40 of the Employment Act, including notification of the labour officer
- In an unlawful termination suit the employee bears the burden of proving the termination was unlawful, while the employer must justify the dismissal by proving valid reasons under Section 43
Court orders
#- 1.One month salary in lieu of notice Kshs. 28,528/-
- 2.Leave due Kshs. 28,528/-
- 3.6 months compensation Kshs. 171,168/-
- 4.Costs of the suit
- 5.Interest on items (i), (ii), (iii) and (iv) at Court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 40, 41, 43, 45, 47, 49) over a claim of wrongful termination and non-payment of terminal dues
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Waire Ndunu v Express Automation Limited [2016] KEELRC 895 (KLR)", Case Analysis (2016). Cause (employment claim commenced 9th May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/895/eng@2016-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.