Paul Otieno Ochola v Unilever Kenya Limited [2018] KEELRC 1038 (KLR)
The bottom line
#Unilever Kenya was ordered to pay an employee 12 months' salary after hiring him without disclosing it already planned to make his job redundant.
What this practically means
#Executive summary
#Key legal issues
#Non-disclosure of impending redundancy at the point of recruitment
The Respondent knew of the planned restructuring before employing the Claimant, failed to disclose it, and used him to implement the very restructuring that rendered him redundant; this was an unfair labour practice
The Court found from the email exchanges and job objectives (the P2P Transformation target with knowledge transfer to be completed by October 2015) that the Respondent knew of the restructuring when it 'poached' the Claimant in June 2015, contrary to its assertion that it only learnt of the P2P implications in September 2015. Relying on Sita Steel Rolling Mills, the duty of disclosure arises by law regardless of innocence. The conduct was held unfair and callous despite the redundancy procedure itself being followed.
Whether the redundancy procedure under Section 40 of the Employment Act vitiated the termination
Although the redundancy procedure was procedurally followed, the antecedent unfairness in the recruitment defeated the Respondent's defence and justified compensation
The Respondent relied on compliance with Section 40 of the Employment Act and Article 41. The Court accepted the process was followed but held the callous intention in hiring the Claimant knowing of the impending redundancy could not be ignored or go unpunished, and awarded 12 months' salary under Section 49 considerations.
Legal principles established
#- Employing a person with knowledge of an impending redundancy and failing to disclose that material fact constitutes an unfair labour practice contrary to Article 41 of the Constitution
- The duty of disclosure arises by law and not as a term of contract; innocent non-disclosure is as actionable as negligent non-disclosure or fraudulent concealment
Court orders
#- 1.Damages equivalent to 12 months' salary of Kshs. 1,402,026.96 awarded to the Claimant
- 2.Respondent to pay costs of the suit
- 3.Respondent to issue the Claimant with a Certificate of Service
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007; Article 41 of the Constitution of Kenya, 2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Otieno Ochola v Unilever Kenya Limited [2018] KEELRC 1038 (KLR)", Case Analysis (2018). Cause No. 2155 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1038/eng@2018-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.