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ELRCPartially AllowedNot stated in the judgment (ELC Cause, Employment and Labour Relations Court, Nairobi)· [2019] KEELRC 1176 (KLR)

Caroline Atieno Onyango v Style Industries Limited [2019] KEELRC 1176 (KLR)

Employment and Labour Relations Court
5 July 2019
2,356 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, employed as a general worker at the Respondent's Lunga Lunga manufacturing plant in Nairobi from 2007, claimed her employment was unfairly terminated on 25th April 2014 after she resumed duty from approved leave. She sought compensation for unfair termination of Kshs.132,960, one month's notice pay of Kshs.11,080, payment in lieu of leave of Kshs.27,700, less Kshs.21,140 already paid, plus costs and interest. The Respondent admitted the employment relationship and a gross monthly salary of Kshs.11,080, but maintained the Claimant was laid off in a restructuring affecting 80 employees, that the Ministry of Labour was notified on 5th February 2014, and that all terminal dues were settled. The court framed two issues: whether the redundancy was lawful and fair, and whether the Claimant was entitled to the reliefs sought. Holding that an employer must issue two separate notices of at least one month each plus notice to the Labour Officer, the court found the Respondent failed to produce any notification to the Ministry of Labour and that the termination letter dated 31st March 2014 took effect the same day, giving the Claimant no notice. The redundancy was therefore unprocedural and unfair. On quantum, the court computed notification pay, notice pay, severance pay for two years, salary for days worked and 42 days' leave pay, and after deducting the sum already paid, awarded Kshs.37,295, plus three months' salary (Kshs.36,312) as compensation for the irregular redundancy, totalling Kshs.73,607.00. The Respondent was ordered to pay the Claimant's costs, with interest on the decretal sum at court rates.

Key legal issues

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01

Whether the Claimant's redundancy was lawful and fair

Holding

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.

Reasoning

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.

p. 4
02

Whether the Claimant is entitled to the reliefs sought

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.The Respondent to pay the Claimant's costs
  3. 3.The decretal sum to attract interest at court rates

Authorities

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Legislation

  • Employment ActSection 2 (definition of redundancy)
  • Employment Act, 2007Section 40, including 40(1)(a), (b), (f) and 40(1)(b)
  • Employment Act, 2007Sections 35(1)(c), 41, 43, 47, 49(1)(a) and (c)

Cases cited (8)

  • David Gichnana Omuya Vs Mombasa Maize Millers Limited
    (2014) eKLR
  • Kennedy Maina Mirera Vs Barclays Bank of Kenya
    (2018) eKLR
  • David Ochieng Vs Uniliver Kenya Limited
    Cause No. 2 of 2018
  • Pamela Nelima Lutta Vs Mumias Sugar Co. Ltd
    (2017) eKLR
  • Thomas De La Rue Vs David Omutelema
    (2013) eKLR / [2013] eKLR
  • Kenya Airways Limited -V- Allied Workers Union of Kenya & 3 Others
    (2014) eKLR
  • Bernard Misawo Obora vs Coca Cola Juices Kenya Limited
    [2015] eKLR
  • Margaret Mumbi Mwago Vs Intrahealth International
    (2017) eKLR
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

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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, "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.