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ELRCPartially AllowedCause No 282 of 2016· [2018] KEELRC 2499 (KLR)

Jaspher Ngare Ogato v Bright Lights Girls High School [2018] KEELRC 2499 (KLR)

Employment and Labour Relations Court
19 January 2018
679 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a teacher's redundancy unfair because the school skipped mandatory redundancy procedures, awarding him over Kshs 107,000 in compensation.

What this practically means

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Executive summary

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The Claimant, employed as a Teacher/Laboratory Technician In Charge, sued the Respondent school over unfair termination, pay in lieu of notice, public holidays allowance, leave allowance and severance pay after his services ended by letter dated 3 November 2015 effective 5 November 2015 without reasons. The Respondent filed a response but did not attend the hearing, which proceeded in its absence since the hearing date had been fixed in the presence of its advocate. The Court found that the separation was due to operational reasons amounting to redundancy, but that the Respondent had not complied with the statutory conditions in section 40 of the Employment Act, 2007, and had failed to attend the hearing to prove a valid and fair reason under section 45(2). The termination was therefore unfair. The Court awarded one month's pay in lieu of notice (Kshs 16,000/-), severance pay under section 40(1)(g) (Kshs 27,785/-), and compensation of four months' gross wages (Kshs 64,000/-), given about four years of service, totalling Kshs 107,785/-. The claims for overtime/public holiday allowance and leave allowance failed for want of proof: no particulars of public holidays were given, and the law provides for leave with full pay rather than a leave allowance. The Claimant received costs on half scale, and the file was to be transmitted back to Nakuru.

Key legal issues

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01

Fairness of termination on grounds of redundancy

Holding

The termination was unfair because the Respondent did not comply with section 40 procedural requirements and did not prove a valid and fair reason

Reasoning

The separation was attributable to operational reasons amounting to redundancy. The Respondent neither followed the statutory conditions in section 40 of the Employment Act nor attended the hearing to demonstrate that it had a valid and fair operational reason for ending the contract as required by section 45(2). The Court therefore found the termination substantively and procedurally unfair.

p. 3
02

Overtime/public holiday allowance claim

Holding

Not proved due to absence of particulars

Reasoning

The Claimant testified that he worked during public holidays without overtime pay, quantified at Kshs 14,785/-, but disclosed no evidential foundation or particulars of the specific public holidays worked. The burden of proof was not discharged and the claim failed.

p. 2
03

Leave allowance claim

Holding

Not proved; the law entitles employees to leave with full pay, not leave allowance

Reasoning

The general law of employment entitles an employee to leave with full pay rather than an allowance. The Claimant never suggested that he went unpaid while on leave and provided no foundation for an allowance; the head of claim therefore failed.

p. 2
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Appropriate remedies

Holding

Notice pay of Kshs 16,000/-, severance pay under section 40(1)(g), and compensation of 4 months' gross wages for 4 years' service

Reasoning

Having found the redundancy termination unfair, the Court awarded one month's pay in lieu of notice per the appointment letter, severance pay under section 40(1)(g), and compensation assessed at four months' gross wages in consideration of the roughly four years of service.

p. 2

Legal principles established

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  • An employer terminating on grounds of redundancy must comply with the statutory conditions in section 40 of the Employment Act, 2007
  • The employer bears the burden of proving a valid and fair reason for termination under section 45(2)(a),(b)(ii) of the Employment Act, 2007
  • A party who fails to attend a hearing of which its advocate had notice proceeds at its own peril

Court orders

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  1. 1.Award of 1 month pay in lieu of notice of Kshs 16,000/-
  2. 2.Award of severance pay of Kshs 27,785/-
  3. 3.Award of compensation equivalent to 4 months gross wages of Kshs 64,000/-
  4. 4.Total award of Kshs 107,785/- to the Claimant
  5. 5.Claimant to have costs on half scale
  6. 6.File to be transmitted back to Nakuru after judgment

Authorities

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Legislation

  • Employment Act, 2007section 40
  • Employment Act, 2007section 40(1)(g)
  • Employment Act, 2007section 45(2)(a),(b)(ii)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Jaspher Ngare Ogato v Bright Lights Girls High School [2018] KEELRC 2499 (KLR)", Case Analysis (2018). Cause No 282 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2499/eng@2018-01-19

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