Catherine Wambui Karuno v Trocaire [2016] KEELRC 965 (KLR)
The bottom line
#A Kenyan court awarded Kshs 3.9 million because an NGO treated a contract non-renewal as a redundancy without following mandatory redundancy procedures.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was declared redundant or the contract terminated by effluxion of time
The court found that by invoking Section 40 and notifying the Ministry of Labour that the position was phased out, the Respondent declared a redundancy; had the Respondent said nothing, the contract would have ended by effluxion of time.
The Claimant's fixed-term contract was due to end on 30th June 2014. However, the Respondent wrote to the Ministry of Labour citing Section 40 of the Employment Act, stating the position of Regional Human Resource Advisor had been phased out as a result of strategic and operational decisions. This conduct brought the cessation of employment within the statutory definition of redundancy in Section 2 of the Employment Act, rather than a natural expiry of a fixed-term contract.
Whether the redundancy was fair and lawful
The redundancy was unfair and unlawful because the Respondent did not comply with the conditions in Section 40 of the Employment Act.
Section 40 prescribes conditions precedent to a lawful redundancy: written notice to the employee and labour officer at least one month before termination, due regard to seniority, skill, ability and reliability in selection, payment of leave, one month's notice or pay in lieu, and severance pay of at least fifteen days' pay per completed year of service. The court found the Respondent did not meet these requirements, making the redundancy unfair and unlawful.
Whether the Claimant had a legitimate expectation that the contract would be extended to 2015
The Claimant had a legitimate expectation to work for the Respondent up to 2015, based on repeated promises by different officers of the Respondent, which expectation was frustrated by the Respondent.
The Regional Manager wrote that the Claimant's position would continue in Nairobi for at least two more years, and the new Regional Manager confirmed in writing a decision to offer her the position of Regional HR Advisor until February 2015. Relying on the principle in Combe v Combe, the court held these repeated assurances created a legitimate expectation that was frustrated when the Respondent changed position at the last moment.
Legal principles established
#- Where an employer notifies the Ministry of Labour under Section 40 that a position is being phased out and will not be renewed, the cessation of employment amounts to a redundancy rather than termination by effluxion of time.
- A redundancy effected without compliance with the procedural requirements of Section 40 of the Employment Act is unfair and unlawful.
- Repeated promises of continued employment by the employer can found a legitimate expectation of employment until the promised date.
Court orders
#- 1.Payment of 1 month's salary in lieu of notice of Kshs 299,747
- 2.Payment of 12 months' salary as damages for unlawful redundancy (299,747 x 12) of Kshs 3,596,964
- 3.Total award of Kshs 3,896,711 less statutory deductions
- 4.Plus costs and interest
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Section 40 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Wambui Karuno v Trocaire [2016] KEELRC 965 (KLR)", Case Analysis (2016). Cause No. 1325 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/965/eng@2016-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.