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ELRCAllowedNot stated in judgment· [2019] KEELRC 1503 (KLR)

Andrew Muholo Teyie v Nation Media Group Limited [2019] KEELRC 1503 (KLR)

Employment and Labour Relations Court
24 May 2019
1,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan media house's flawed redundancy cost it over Kshs 4.2 million after a court found it unfairly terminated an investigative editor.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 30 May 2013 as an Investigative Editor at a monthly salary of Kshs 294,400 with a house allowance of Kshs 105,600, was terminated on 4 March 2016 on account of alleged redundancy following a reorganisation of the respondent's Editorial Department. He alleged the redundancy was a pretext, driven by his investigative reporting on mega-corruption scandals including NYS, KRA and the Eurobond saga, which displeased his superiors, particularly the Editor-in-Chief, who instructed staff to desist from further Eurobond reporting. The parties dispensed with oral hearing and filed submissions. The court held that section 40 of the Employment Act imposes mandatory conditions for redundancy, including notification of the labour officer and not less than one month's notice of the reasons for and extent of the redundancy, even for non-unionisable employees, following the Court of Appeal's decision in Thomas De La Rue. The respondent terminated the claimant with immediate effect and offered payment in lieu of notice without explaining why the statutory notice was not given, and never notified the labour officer. The court found the termination procedurally unfair and observed that the failures lent credence to the claimant's allegation of victimisation over his stories. The court awarded the claimant ten months' salary as compensation, Kshs 4,265,390, subject to taxes and statutory deductions, with interest at court rates from judgment until payment in full, plus costs of the suit.

Key legal issues

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01

Compliance with section 40 of the Employment Act in declaring redundancy

Holding

The respondent failed to notify the labour officer as required and gave no reason for not giving a month's notice or for paying in lieu of notice, so the redundancy was procedurally unfair

Reasoning

Section 40(1)(b) read with section 40(1)(a) requires an employee declared redundant to be given reasons for and the extent of the intended redundancy not less than one month before termination, and the labour officer must be notified. The termination letter of 4 March 2016 took effect immediately, and the respondent offered payment in lieu of notice without explaining why the statutory notice was not given. The court, following Thomas De La Rue, held the same notice period applies to non-unionisable employees and that payment in lieu is not sanctioned by the section unless the employee elects it.

p. 2
02

Whether the redundancy was genuine or a pretext

Holding

The procedural failures lent credence to the claimant's allegation that his separation was motivated by discomfort over his corruption-related investigative stories

Reasoning

The claimant alleged that his reporting on NYS, KRA and Eurobond corruption created tension with the Editor-in-Chief, who directed him to go slow on sensitive stories, and that an email of 2 December 2015 instructed staff to desist from further Eurobond reporting. While the respondent pleaded reorganisation of the Editorial Department, its unexplained failure to observe the mandatory statutory notice requirements supported the claimant's contention that the redundancy was used to rid itself of an inconvenient journalist.

p. 2

Legal principles established

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  • A non-unionisable employee declared redundant is entitled to the same one-month notice as a unionisable employee, on a purposive reading of section 40 of the Employment Act
  • Payment in lieu of redundancy notice is not provided for under section 40 and should only occur where the employee elects it
  • Failure to comply with the mandatory conditions of section 40 renders a redundancy an unfair termination

Court orders

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  1. 1.Declaration that the termination of the claimant's service was unfair
  2. 2.Award of ten months' salary as compensation for unfair termination, being Kshs 4,265,390, subject to taxes and statutory deductions
  3. 3.Interest at court rates on the award from the date of judgment until payment in full
  4. 4.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment ActSection 40(1)(a) and (b)

Cases cited (2)

  • Thomas De La Rue (K) Ltd Vs David Opondo Omutelema
    Civil Appeal No 65 of 2012
  • Kenya Airways Ltd Vs Aviation & Allied Workers Union
    2014 eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act); judgment does not cite the specific constitutional provision

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, "Andrew Muholo Teyie v Nation Media Group Limited [2019] KEELRC 1503 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1503/eng@2019-05-24

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