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ELRCPartially AllowedCause No. 1779 of 2015· [2018] KEELRC 2191 (KLR)

Harriet Otieno & 2 others v My Jobs Eye Kenya Limited [2018] KEELRC 2191 (KLR)

Employment and Labour Relations Court
12 March 2018
HWHellen S. Wasilwa
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled the redundancy of three employees was unfair because their employer skipped the legally required notice and consultation, awarding each 12 months' salary.

What this practically means

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Executive summary

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Three employees of My Jobs Eye Kenya Limited claimed damages for unfair and wrongful termination after their employment was terminated on 15 September 2015 during a staff meeting, with immediate-effect termination letters handed to them personally. They pleaded that no notice or hearing was given, terminal dues and September salary were unpaid, house allowance was never paid, and that the termination was in fact a redundancy whose selection formula was never communicated. They also alleged the Respondent's General Manager made tribal remarks against Luos. The Respondent admitted the employment relationship but asserted the terminations complied with the Employment Act, terminal dues were paid, house allowance was included in gross salary, and the selection was based on competence, not tribe. The court found that the reasons for termination were redundancy, which engaged Section 40(1) of the Employment Act. It held the redundancy was unprocedural: no notice was given, there was no consultation, and the selection criteria were not explained. Following the Court of Appeal's decision in Kenya Airways vs Aviation Allied Workers Union, consultation requires participation and consideration beyond mere notice. The redundancy was therefore unfair and unjustified, and each Claimant was awarded 12 months' salary as damages, plus September salary, severance pay, one month's notice pay and house allowance. The tribal discrimination claim failed, as the Claimants did not establish they were from the same tribe and the affected employees came from various communities. The Respondent was ordered to issue Certificates of Service and to pay the Claimants' costs with interest from the date of judgment.

Key legal issues

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01

Whether the termination complied with Section 40(1) of the Employment Act

Holding

The redundancy was flawed, unprocedural and unfair: no notice was given and no consultation occurred, so Section 40(1) was contravened

Reasoning

The court found that if the reason for termination was redundancy, Section 40(1) of the Employment Act had to be followed. The termination letters were served on 15/9/2015 with immediate effect and no reasons were stated in them, so no notice was given. There was also no consultation before the redundancy, contrary to the requirement emphasised in the Kenya Airways case. The selection criteria were likewise not explained to the Claimants.

p. 4
02

Whether the Claimants were discriminated against on tribal grounds

Holding

No discrimination was established; the claim failed on this head

Reasoning

The Respondent denied tribal discrimination and placed the Claimants to strict proof. The court noted the Claimants did not show they were from the same tribe, and the Respondent indicated that employees affected by the redundancy came from various communities, so the allegation was not made out.

p. 4

Legal principles established

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  • A redundancy not preceded by consultation and notice as required by Section 40(1) of the Employment Act is unfair and unprocedural
  • Consultation in redundancy requires participation and consideration, and is distinct from notice

Court orders

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  1. 1.Award of 12 months' salary as damages for unfair and unjustified redundancy to each Claimant
  2. 2.Payment of September 2015 salary (15 days) to each Claimant
  3. 3.Payment of severance pay of 15 days' salary for each completed year of service to each Claimant
  4. 4.Payment of one month's salary in lieu of notice to each Claimant
  5. 5.Payment of house allowance at 15% of salary for the period of service to each Claimant
  6. 6.Issuance of Certificates of Service to each Claimant
  7. 7.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 5(6)
  • Employment ActSection 40(1)
  • Employment ActSection 40

Cases cited (3)

  • E.D.K. Vs K.U.
    (2014) eKLR
  • Carole Nyambura Thiga Vs Oxfam
    (2013) eKLR
  • Kenya Airways vs Aviation Allied Workers Union
    CA No. 46 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims of unfair and wrongful termination under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Harriet Otieno & 2 others v My Jobs Eye Kenya Limited [2018] KEELRC 2191 (KLR)", Case Analysis (2018). Cause No. 1779 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2191/eng@2018-03-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.