Caroline Atieno Onyango v Style Industries Limited [2019] KEELRC 1176 (KLR)
The bottom line
#Kenya's Employment Court ruled a redundancy unfair because the employer gave no notice and never proved it told the Labour Officer.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's redundancy was lawful and fair
The redundancy was unprocedural and therefore unfair because the Respondent failed to notify the Ministry of Labour and gave the Claimant no notice before the redundancy took effect.
Section 40 of the Employment Act requires notification of the employee (or union) and the Labour Officer one month before redundancy, followed by a notice of termination. The Respondent claimed it wrote to the Ministry of Labour on 5th February 2014 but produced no such communication in evidence. The termination letter dated 31st March 2014 took effect the same date, denying the Claimant any notice. Section 40 was therefore not complied with.
Whether the Claimant is entitled to the reliefs sought
The Claimant was entitled to notification pay, notice pay, severance pay, salary for days worked and leave pay, less amounts already paid, plus compensation of three months' salary for the unfair redundancy.
The Respondent did not provide a breakdown of the Kshs.21,140 paid. The court computed the entitlements item by item using the salary evidence given by RW1, including 42 days' leave for two years of service, and deducted the sum already received. Because the redundancy was irregular, the court also awarded three months' salary as compensation, totalling Kshs.73,607.00.
Legal principles established
#- An employer declaring a redundancy must issue two separate notices of at least one month each - a general notice of the impending redundancy and a specific notice of termination to the affected employee - plus one month's notice to the local Labour Officer.
- The notice to the Labour Officer under Section 40 of the Employment Act is meant to elicit advice on the modalities of the redundancy and acts as a control measure against unlawful termination clothed as redundancy.
- An employee notified of redundancy on the very date the redundancy takes effect is denied the notice envisaged by Section 40, rendering the redundancy unprocedural and unfair.
Court orders
#- 1.Payment of Kshs.73,607.00 to the Claimant, being outstanding entitlements of Kshs.37,295 (after deducting the Kshs.21,144 already paid) and 3 months' salary as compensation for the irregular redundancy of Kshs.36,312
- 2.The Respondent to pay the Claimant's costs
- 3.The decretal sum to attract interest at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (not expressly cited in the judgment excerpt)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Caroline Atieno Onyango v Style Industries Limited [2019] KEELRC 1176 (KLR)", Case Analysis (2019). Not stated in the judgment (ELC Cause, Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1176/eng@2019-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.