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ELRCPartially AllowedCause No. 491 of 2019 (consolidated with Cause No. 527 of 2019)· [2019] KEELRC 621 (KLR)

Julius Lulle Kakello & 18 others v Makini School Limited [2019] KEELRC 621 (KLR)

Employment and Labour Relations Court
11 October 2019
MOMaureen Onyango
3,857 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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Kenyan employers must notify an employee's trade union before a redundancy, even without a recognition agreement, or the redundancy notices are void.

What this practically means

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Executive summary

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Two consolidated applications (Cause No. 491 of 2019 consolidated with Cause No. 527 of 2019) sought interim injunctions restraining the Director, Makini Schools from proceeding with a redundancy announced by letters dated 19th July 2019, on grounds that the redundancy violated Article 41 of the Constitution and Section 40 of the Employment Act, and was retaliation for union activities. The Claimants, supported by the Interested Party union (Kudheiha), argued that no notice of intended redundancy was served on the union and that the notice served on the Labour Commander did not comply with Section 40(1)(a). The Respondent maintained it had complied with the law, that the Commissioner of Labour is a labour officer, and that damages would adequately compensate the employees since the exercise had been concluded. The court framed the sole issue as whether the redundancy notices complied with the law. It held that because the employees were union members, Section 40(1)(a) required notice to the union, and the Respondent had served only the Labour Office; the notices were therefore defective and declared null and void. However, the court held that service on the Commissioner for Labour was proper, as the Commissioner is the Chief Labour Officer and can perform all functions of a labour officer, applying Eastleigh Mattress Limited. The court directed fresh notices in compliance with the Act, to be issued to the union under Section 40(1)(a), and clarified the distinction between notification of intention to carry out redundancy under Section 40(1)(a) and (b) and the termination notice under Section 40(1)(f). The interlocutory injunctions as such were overtaken by events; no express costs order appears in the judgment.

Key legal issues

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01

Compliance with Section 40(1)(a) of the Employment Act - notice of intended redundancy to the union

Holding

The notices were defective because the Respondent served notice only on the Labour Office and did not serve the union although the employees were union members; the notices were declared null and void

Reasoning

The court held that Section 40(1)(a) requires an employer whose employees are union members to notify both the union and the labour officer at least one month before the intended redundancy. It is only where an employee is not a union member that direct notice to the employee suffices. Membership of a trade union, not recognition or a CBA, triggers the obligation. The Respondent demonstrated service on the Labour Office only, not on the union, so the notices were defective.

p. 6
02

Whether notice to the Labour Commissioner satisfies the requirement of notice to the labour officer

Holding

The court upheld the validity of service on the Labour Commissioner, holding that the Commissioner for Labour is the Chief Labour Officer and can perform all the functions of a labour officer

Reasoning

The court reasoned from Section 2 of the Employment Act, which defines a labour officer to include the Labour Commissioner, and Sections 32(1) and 33 of the Labour Institutions Act, under which the Commissioner may delegate powers to labour officers. Since one cannot delegate powers one does not possess, the Commissioner can perform those functions personally. The Claimants' distinction between a Labour Commander and a Labour Officer was therefore rejected, following Eastleigh Mattress Limited.

p. 7
03

Distinction between the notification of intention to carry out redundancy and the termination notice

Holding

The court clarified that notification of intention to carry out redundancy falls under Section 40(1)(a) and (b), while the termination notice falls under Section 40(1)(f)

Reasoning

In directing fresh notices, the court sought to remove confusion between the two separate notifications contemplated by Section 40: the advance notice of intention to declare redundancy (one month, to the union and labour officer) and the notice or wages in lieu payable to the affected employee upon termination. Because the employees were union members, the fresh notification was to be made to the union under Section 40(1)(a).

p. 7

Legal principles established

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  • Where employees are members of a trade union, an employer must notify the union of intended redundancy under Section 40(1)(a) of the Employment Act, whether or not a recognition agreement exists; failure to do so renders the notices defective
  • The Commissioner for Labour is the Chief Labour Officer and service of a redundancy notice on the Labour Commissioner satisfies the requirement of notice to the labour officer under Section 40(1)(b)

Court orders

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  1. 1.The notices of redundancy issued to the Claimants are declared null and void
  2. 2.The Respondent is directed to issue fresh notices in compliance with Section 40 of the Employment Act
  3. 3.The court clarifies that notification of intention to carry out redundancy is under Section 40(1)(a) and (b) while termination notice is under Section 40(1)(f)
  4. 4.Since the employees are members of the union, the notification of redundancy shall be made to the union under Section 40(1)(a)

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 21, 22, 23, 27, 28, 41, 48, 50, 159(2)(a)
  • Employment Act, 2007Sections 2, 12, 40(1)(a)-(g), 46
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 17 and 28
  • Labour Institutions ActSections 30(1)(a), 30(2), 32(1), 33

Cases cited (13)

  • Kenya Engineering Workers Union Vs Africa Metal Workers Limited
    (2019) eKLR
  • Thomas De La Rue (K) Limited Vs David Opondo Omutelema
    (2013) eKLR
  • Joseph Tama Ndua & 11 Others Vs Jacaranda Hotels (Msa) Limited
    (2014) eKLR
  • Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (Kudheiha) Vs Aga Khan University Hospital Nairobi
    (2015) eKLR
  • Barclays Bank of Kenya & Another Vs Gladys Muthoni & 20 Others
    (2018) eKLR
  • Angela Shiukuru Ilondanga Vs Airtel Networks Kenya Limited
    (2018) eKLR
  • Kenya Plantation and Agricultural Workers’ Union Vs Harvest Limited
    (2014) eKLR
  • Africa Nazarene University Vs David Mutemu & 103 Others
    (2017) eKLR
  • Kenya Airways Limited Vs Aviation and Allied Workers Union of Kenya & 3 Others
    (2014) eKLR
  • Giella Vs Cassman Brown and Company Limited
    (1973) E.A 358
  • Kenya Petroleum Oil Workers Union Vs Kenya Petroleum Refineries Limited & 3 Others
    (2014) eKLR
  • Williams Vs Compare Maxam Ltd
  • Eastleigh Mattress Limited Vs Cabinet Secretary, Ministry of Labour Social Security and Services & Another
    (2015) eKLR
Jurisdiction invoked
Articles 10, 21, 22, 23, 27, 28, 41, 48, 50, 159(2)(a) of the Constitution of Kenya, 2010; Sections 12 and 40 of the Employment Act; Rules 17 and 28 of the ELRC (Procedure) Rules, 2016

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, "Julius Lulle Kakello & 18 others v Makini School Limited [2019] KEELRC 621 (KLR)", Case Analysis (2019). Cause No. 491 of 2019 (consolidated with Cause No. 527 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/621/eng@2019-10-11

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