Josephine M. Ndungu & others v Plan International Inc [2019] KEELRC 663 (KLR)

The court found the respondent faced organisational difficulties raised by staff and reduced donor funding, justifying the review. The consultant was competitively picked, and the report was approved by the majority of the CMT, Country Director, Regional Director and ROMT; even a CMT rejection could be overruled by the Country Director under the CMT Charter. The claimants declined to reapply for available positions, so the employer was justified in laying them off.

The claimants received individual redundancy notices and the respondent's policy manual entitled them to six months' notice or payment in lieu. The notice was served on the Cabinet Secretary rather than the labour officer in charge of the area, and not on the Kilifi labour office, but the court held the error excusable since the notice reached the correct government office of Labour and the statutory purpose was served.

The employer advertised the new and downsized positions and advised the claimants to apply. Their refusal meant they could not be considered for the jobs, and the employer could not force appointment on the 6th and 7th claimants who resigned. Had they applied, the statutory criteria of seniority, skill and ability would have applied to selection.

In light of the finding that the restructuring and redundancy were justified and procedurally fair, the court held the discrimination claim lacked merit. The evidence showed the claimants' views were sought, they received the same memos, redundancy notices and dues computed the same way as other staff.

The claimants alleged defamation through disciplinary proceedings and removal from committees or bank signatory status, but no third-party evidence of publication was adduced. Membership of committees and bank signatory status are at the employer's discretion, and an employer is entitled to investigate suspected misconduct; being cleared after investigation does not found a defamation claim.