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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 549 (KLR)

Leah Waithira Warari v Manasco Medical Centre & another [2019] KEELRC 549 (KLR)

Employment and Labour Relations Court
25 October 2019
OMOnesmus N. Makau
1,197 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who skips the mandatory redundancy procedure under section 40 of the Employment Act will lose an unfair termination case, even without a defence.

What this practically means

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Executive summary

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The claimant, a Pharmaceutical Technologist employed by the 1st respondent from 2.6.2011, had her services terminated on account of redundancy effective 1.1.2015 while, on her evidence, she was on maternity leave. She sued for twelve months' compensation, notice pay, pro-rata leave, house allowance, severance pay, salary underpayment, and unused maternity leave, totalling Kshs.714,113. The respondent filed no defence but cross-examined the claimant and filed written submissions, in which she admitted non-compliance with section 40 of the Employment Act on redundancy, admitted severance pay of Kshs.27,000, and admitted serving only a 15-day termination notice. The court framed two issues: whether the termination was wrongful and unfair, and whether the reliefs should be granted. Applying section 45, it held that termination is unfair unless the employer proves a valid and fair reason and fair procedure; the respondent adduced no evidence justifying the redundancy and admitted the mandatory section 40 procedure was not followed, so the termination was unfair. The court awarded one month's notice pay (Kshs.18,000), six months' compensation (Kshs.108,000) considering the absence of misconduct and the short three-year service, admitted severance pay (Kshs.27,000), and 63 days' accrued annual and maternity leave (Kshs.43,615.40), a total of Kshs.196,615.40. The house allowance and underpayment claims were dismissed for lack of evidence, the wage order produced not covering Pharmaceutical Technologists. Judgment was entered subject to statutory deductions, with costs and interest at court rates.

Key legal issues

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01

Whether the termination on account of redundancy was wrongful and unfair

Holding

The termination was unfair: the respondent adduced no evidence to justify the redundancy and admitted non-compliance with section 40 of the Employment Act

Reasoning

Section 45 places the burden on the employer to prove both a valid and fair reason and a fair procedure. The respondent gave no evidence justifying the redundancy, and in written submissions admitted she never complied with the mandatory procedure under section 40, including the one-month notice to the employee and the labour office and payment of terminal dues. The court therefore found the summary termination unfair within the meaning of section 45.

p. 2
02

What reliefs flow from the unfair termination

Holding

One month's notice pay, six months' salary compensation, admitted severance pay of Kshs.27,000, and 63 days' accrued annual and maternity leave were awarded; house allowance and underpayment claims failed for want of evidence

Reasoning

In exercising discretion under section 49, the court considered that the claimant did not contribute to the termination through misconduct and her relatively short service of three years, awarding six months rather than twelve months' compensation. Severance pay was admitted by the respondent at Kshs.27,000. Leave was computed at 63 days (21 annual leave days plus 42 maternity leave days). The house allowance and underpayment claims failed because the claimant admitted the General Wages Order produced did not provide for a Pharmaceutical Technologist.

p. 3

Legal principles established

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  • Termination is unfair where the employer fails to prove a valid and fair reason and fair procedure, including the mandatory redundancy procedure under section 40 of the Employment Act.

Court orders

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  1. 1.Judgment entered for the claimant as follows: Notice Kshs.18,000.00; Compensation Kshs.108,000.00; Severance pay Kshs.27,000.00; Annual leave and Maternity leave Kshs.43,615.40; total Kshs.196,615.40
  2. 2.The award is subject to statutory deductions
  3. 3.Costs of the suit to the claimant
  4. 4.Interest at court rates from the date of the judgment

Authorities

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Legislation

  • Employment Act 2007section 49(1)(c)
  • Employment Act 2007section 40(1)
  • Employment Act 2007section 40(1)(e), (f) and (g)
  • Employment Act 2007section 45
  • Employment Act 2007section 28(4)
  • General Wage Order2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (sections 40, 45, 49 and 28 invoked)

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, "Leah Waithira Warari v Manasco Medical Centre & another [2019] KEELRC 549 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/549/eng@2019-10-25

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