Kenya Union Of Journalists And Allied Workers v Nation Media Group Limited [2016] KEELRC 1743 (KLR)
The bottom line
#A Kenyan court ruled Nation Media Group unfairly retired an employee under 're-organisation' but only awarded him unpaid leave dues.
What this practically means
#Executive summary
#Key legal issues
#Fairness of the early retirement/redundancy termination
The termination was unfair because the Respondent did not discharge the burden of proving the reasons for and extent of the re-organisation, having opted not to call evidence.
Early retirement based on re-organisation is a form of redundancy under section 40 of the Employment Act. Where an employee challenges the reason cited, the employer must prove under sections 43 and 47 that there was a business need to re-organise and give the section 40(1)(a) notice of reasons and extent not less than a month before termination. The Respondent called no evidence, so the Court could not be taken through the justification, rendering the termination unfair under section 45.
Victimisation on grounds of HIV status
No evidence supported the claim of victimisation; the Grievant knew his status in 1996, remained employed 12 years, and did not show the supervisor's conversation tied the retirement to his status.
Although sections 5 and 47 of the Employment Act outlaw HIV-based victimisation, a claimant must go beyond mere citation of status and set out clearly how the status became the subject of concern and how it motivated the treatment. The Grievant's cross-examination confirmed the status was not discussed with his supervisor at the early retirement meeting, so no firm finding of discrimination could be made.
Remedies where terminal dues exceed statutory and CBA minima
No general damages for unfair termination were awarded because notice pay and severance paid exceeded the Employment Act minimum and the CBA rate; only unchallenged leave dues and travel allowance were awarded.
The Grievant received 3 months' notice pay against the CBA's 30 days, and severance at 30 days per year against the CBA's 15 days per year. Awarding further compensation would penalise the Respondent for exceeding the legal minimum. However, the 20 days' leave (Kshs.125,232.00) was not challenged and leave travelling allowance (Kshs.22,863.00) was not evidenced as paid, so those were awarded.
Legal principles established
#- An employer asserting redundancy/re-organisation bears the burden under sections 43 and 47 of the Employment Act to prove the reasons for and extent of the re-organisation, and mere evidence of re-organisation is insufficient.
- Without the employer discharging the burden of justifying the re-organisation, a termination based on it is unfair under section 45 of the Employment Act.
- A redundancy cannot affect only one employee; the process requirements under section 40 must be justified and followed.
- A claim of victimisation based on HIV status must be specifically pleaded and proved with evidence of how the status motivated the treatment; it cannot be glossed over or treated casually.
Court orders
#- 1.Judgment entered for the Claimant for Kshs.125,232.00 for leave due
- 2.Award of Kshs.22,863.00 for travel allowances
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes reported under the Labour Relations Act; dispute reported to the Minister under the (then applicable) labour dispute resolution framework
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union Of Journalists And Allied Workers v Nation Media Group Limited [2016] KEELRC 1743 (KLR)", Case Analysis (2016). Cause No. 315 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1743/eng@2016-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.