Dennis Mullow v Ashnil Hotels Limited [2019] KEELRC 1682 (KLR)
The bottom line
#A Kenyan court ruled Ashnil Hotels' redundancy was genuine but unfairly executed, awarding a chef three months' salary because proper notice wasn't given.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination by redundancy was lawful
Redundancy was valid in reason but unprocedural in execution: notice to the claimant was only about 13 days, the union letter of October 2013 did not name affected employees, and the labour officer was never notified.
The court found a genuine redundancy situation given low tourist business, supported by newspaper reports and witness evidence. However, section 40(1)(a) and (b) require not less than one month's notice of reasons and extent of redundancy to the union and labour officer. The claimant's letter gave roughly 13 days, the union notice of 23rd October 2013 predated the redundancy by nearly a year and promised names never sent, and there was no notification to the labour office. The procedure was therefore flawed and the redundancy unprocedural, warranting compensation.
Whether the claimant was entitled to underpayment for acting as Head Chef
Entitled only to the acting allowance for the full acting period, not to Head Chef salary; the specific underpayment claim of Kshs.85,000 failed for want of proof.
The appointment letter of 23rd February 2011 placed the claimant on a three-month trial as Acting Head Chef with a Kshs.5,000 allowance. No appraisal was done, yet he acted for over a year until the transfer letter of 19th July 2012 withdrew the allowance and designated him Sous Chef. The court held he was entitled to the acting allowance for the period acted but, never substantively appointed, could not claim Head Chef salary; no document proved the alleged Kshs.85,000 salary.
Whether the claimant proved unpaid overtime
Not proved.
The claimant admitted in cross-examination that there was a two-hour break between shifts and that he accumulated off days taken every two to three months. RW2 explained rotating shift arrangements and that the sous chef, as supervisory staff, coordinated hours with the head chef. On this evidence the court found the claimant had not demonstrated overtime hours worked without pay.
Legal principles established
#- The one-month notification period in section 40(1)(a) of the Employment Act applies equally to notification under section 40(1)(b); a notice of approximately 13 days is statutorily insufficient.
- An employee who acts in a higher position beyond the stated trial/acting period set in the appointment letter is entitled to the acting allowance for the entire period acted, but not to the substantive salary of the higher office absent appointment.
- A valid redundancy reason does not cure a flawed procedure; non-compliance with section 40(1)(a) and (b) renders the redundancy unprocedural and compensable.
Court orders
#- 1.Award of three (3) months' salary as compensation for unprocedural redundancy in the sum of Kshs.146,520
- 2.Dismissal of the prayers for underpayments and overtime
- 3.Respondent to pay the claimant's costs of the suit
- 4.Decretal sum to attract interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dennis Mullow v Ashnil Hotels Limited [2019] KEELRC 1682 (KLR)", Case Analysis (2019). Employment and Labour Relations Court cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1682/eng@2019-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.