Kenya Hotels and Allied Workers Union v Clement Nganga Kamau & another [2019] KEELRC 1589 (KLR)
The bottom line
#A Nairobi hotel that simply shut its doors without following Kenya's redundancy procedure was ordered to pay its waiters compensation and terminal dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievants' termination amounted to lawful redundancy
It was constructive redundancy effected without complying with section 40 of the Employment Act, hence unfair and unlawful
The grievants reported to work on 27.11.2014 and found the respondent's premises closed; the business was closed without notice or the prescribed redundancy procedure. The Court therefore treated the closure as constructive redundancy and found the termination unfair and unlawful for failure to comply with section 40 of the Employment Act, 2007.
Whether the Regulation of Wages (Agricultural Industry) (Amendment) Order, 2012 applied to the grievants
It did not apply because the grievants worked in the hotel industry
The claimant relied on a Wage Order effective 02.07.2012 applicable to the agricultural industry, yet the grievants were waiters in a hotel establishment. The claimant failed to justify its applicability, so claims computed on that basis (underpayments, overtime, public holidays, gratuity and severance on that scale) failed.
What remedies were due to the grievants
Six months' salary compensation under section 49, two months' pay in lieu of notices under section 40, 15 days' severance per completed year, service pay per completed year, and three months' pay in lieu of annual leave
Considering each grievant's period of service, the breach of section 40 leading to abrupt termination without notice, and that each grievant did not contribute to the termination and had a clean record, the Court awarded compensation and statutory dues, quantified per grievant at the last monthly pay of Kshs.4,000.
Legal principles established
#- Closure of business premises without compliance with section 40 of the Employment Act amounts to constructive redundancy and unfair, unlawful termination
- Where a redundancy is unfair, compensation may be awarded under section 49 considering length of service, the breach and the employee's clean record
Court orders
#- 1.Declaration that the constructive redundancy was unfair and unprocedural
- 2.The respondents to pay the claimant Kshs.60,000.00, Martin Chege Kinuthia Kshs.86,000.00; Carolyn Nekoye Simiyu Kshs.62,000.00; and Daniel Maina Mugo Kshs.68,000.00 by 01.07.2019 failing interest at Court rates from the date of judgment till full payment
- 3.Costs of the suit fixed at Kshs.60,000.00 in favour of the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 40 and 49 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels and Allied Workers Union v Clement Nganga Kamau & another [2019] KEELRC 1589 (KLR)", Case Analysis (2019). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1589/eng@2019-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.