Jackson Muiruri Mwangi v Sinohydro Corporation (K) Limited [2016] KEELRC 1407 (KLR)

The Respondent denied any employment relationship but called no witnesses. The Claimant produced an employment card and a contract worker salary form issued by the Respondent; the Respondent did not challenge their authenticity. The Court found no reason to disbelieve the Claimant's testimony and held that an employer cannot rely on its own failure to issue a contract to defeat an employee's claim.

Reduction of work amounts to redundancy as defined in Section 2 of the Employment Act. Although redundancy is a lawful mode of termination, Section 40 imposes stringent conditions precedent including notification of the employee and labour officer, fair selection criteria, payment of leave, one month's notice or pay in lieu, and severance pay of at least fifteen days' pay per completed year. The evidence showed no attempt at compliance, rendering the termination unfair.

In exercising its discretion on compensation, the Court considered the Claimant's length of service and the Respondent's conduct in the termination transaction. Severance was computed at fifteen days' pay per completed year for the two completed years of service. Leave pay was allowed because the Respondent, who bore the burden of keeping leave records, produced none to counter the Claimant's testimony that he never went on leave.