Charles Ondiek Okemwa v Eldoret Mattress Limited & Daniel Ngugi T/A Kamtinga Services Ltd (Cause 474 of 2014) [2016] KEELRC 1783 (KLR)

Redundancy terminations are governed by section 40 of the Employment Act, 2007. Since the employer knows the reason for termination, it bore the burden of demonstrating compliance with the statutory conditions. The Respondents failed to show written notice of at least one month to the employee or Union and failed to show notification of the Local Labour Officer. That singular failure rendered the redundancy procedurally unfair.

Even if the procedural analysis were wrong, section 45(2)(b)(ii) requires the employer to show a valid and fair reason for termination. The Respondent, having asserted redundancy, had to prove that the redundancy arose from its operational requirements. It called no witnesses and led no evidence on this, so the Court alternatively found the termination substantively unfair.

The Claimant testified that he worked from 8.00am to 8.00pm; the Respondents opted not to call witnesses and did not challenge this evidence or interrogate the computation of overtime. Uncontroverted evidence stands, so the Court found for the Claimant on the overtime figures pleaded.

Compensation is a primary remedy under section 49(1)(c) but remains discretionary, guided by the factors in section 49(4). The Court considered the length of service of about 3 years and the Claimant's gross wage of Kshs 12,200/-, and elected to award 4 months' gross wages, also taking into account the declined severance pay.