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ELRCDismissedKisumu ELRC Cause No. 210 of 2015 (consolidated with Kericho ELRC Causes Nos. 200, 201, 202, 205, 206 of 2015 and Kisumu ELRC Cause No. 210 of 2015)· [2019] KEELRC 1510 (KLR)

Christopher Govedi Daniel v Impresa Construzioni Giuseppe Maltauro Spa [2019] KEELRC 1510 (KLR)

Employment and Labour Relations Court
20 May 2019
MOMAUREEN ONYANGOMNMATHEWS NDERI NDUMA
2,388 words in judgment
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The bottom line

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A Kenyan court ruled a redundancy was lawful because the employer notified the union and labour officer and paid all terminal dues in full.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a casual worker from 2000 and later as a driver from about 10th March 2011, sued seeking a declaration that his termination was unlawful, one month's pay in lieu of notice, severance pay of 17 days per completed year, and compensation for unfair termination of twelve months' gross pay, totalling a claimed balance of Kshs.227,448. The suit was selected as a test suit and consolidated with five other causes against the same employer. The respondent admitted the employment relationship but contended that the claimant was declared redundant on 18th October 2013 upon scaling down of the Eldoret-Webuye road contract works, that the union (Kenya Building, Construction, Timber and Furniture Industries Employees Union) and the County Labour Officer were notified by letter dated 2nd October 2013, and that the claimant was paid final dues of Kshs.93,830 in accordance with the Employment Act and the CBA. The parties dispensed with oral evidence and canvassed the suit by written submissions. The court framed two issues: whether the claimant was unfairly terminated and whether he was entitled to the remedies sought. It found the redundancy complied with Section 40 of the Employment Act and the CBA, noting the notices to the union and labour officer and a payslip itemising basic pay, leave pay, overtime, severance, notice pay, house allowance and arrears, all contrary to the claimant's averments. The claim was dismissed with each party bearing its own costs. Dated and signed at Nairobi on 26th April 2019 by Maureen Onyango, J and delivered at Kisumu on 20th May 2019 by Mathews Nderi Nduma, J.

Key legal issues

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01

Whether the redundancy complied with Section 40 of the Employment Act and the CBA

Holding

The redundancy was lawful; the respondent notified the union and the labour officer and paid all dues under the Act and the CBA

Reasoning

The court noted the respondent annexed the notice to the union and the Labour Officer, Uasin Gishu, both dated 2nd October 2013. The claimant's last payslip for October 2013 itemised basic pay, leave pay, overtime, severance pay, notice pay, house allowance and arrears, contradicting the claimant's averments that he was not paid leave, notice and severance. Verbal notice in early September 2013 followed by the written notice of 2nd October 2013 satisfied Section 40 and the CBA's seven-day notice provision.

p. 4
02

Whether the claimant was entitled to the remedies sought

Holding

No; the claim was dismissed as lacking merit

Reasoning

It was not in dispute that the claimant was declared redundant. His allegations of non-payment of leave, February 2012 salary, notice and overtime were contrary to the documentary evidence, including his own P9A form showing a gross payment of Kshs.93,825.75 in October 2013 and the payslip itemising the terminal dues. Having found lawful redundancy, there was no basis for compensation for unfair termination.

p. 4

Legal principles established

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  • A redundancy is lawful where the employer complies with Section 40 of the Employment Act and the applicable collective bargaining agreement, including notification of the union and the labour officer
  • There is no requirement under Section 40(1)(a) and 40(1)(b) of the Employment Act that the one month's notice to the union and labour officer be in writing

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Employment ActSection 40(1)(a)
  • Employment ActSection 40(1)
  • Employment ActSection 40(1)(e) and (f)
  • Employment ActSection 40(1)(b)
  • Regulations of Wages (General) (Amendment) Orderin force at the material time

Cases cited (2)

  • Kenya Airways Limited V Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • G.N. Hale & Sons Limited Vs Wellington Caterers IUW f19901 2 NZILR 1079 (CA)
    [1990] 2 NZILR 1079
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (not expressly cited in the judgment)

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, "Christopher Govedi Daniel v Impresa Construzioni Giuseppe Maltauro Spa [2019] KEELRC 1510 (KLR)", Case Analysis (2019). Kisumu ELRC Cause No. 210 of 2015 (consolidated with Kericho ELRC Causes Nos. 200, 201, 202, 205, 206 of 2015 and Kisumu ELRC Cause No. 210 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1510/eng@2019-05-20

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