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ELRCPartially AllowedEmployment and Labour Relations Court cause (number not stated in judgment)· [2019] KEELRC 1682 (KLR)

Dennis Mullow v Ashnil Hotels Limited [2019] KEELRC 1682 (KLR)

Employment and Labour Relations Court
6 May 2019
3,525 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, employed as a sous chef from 2nd June 2010 at a monthly salary later raised to Kshs.48,840, sued for unfair termination after being declared redundant by letter dated 22nd July 2014, effective 4th August 2014. He sought salary underpayments for acting as Head Chef, overtime, compensation for wrongful dismissal and a certificate of service. The respondent admitted the employment relationship and the redundancy due to low business volumes, denied any appointment as Head Chef, and asserted that the union was notified in October 2013 and all dues paid. The court framed two issues: lawfulness of the termination and entitlement to remedies. It found a genuine redundancy situation existed, evidenced by low tourist volumes, but held the procedure flawed: the claimant received only about 13 days' notice contrary to the one-month requirement of section 40(1)(a) and (b) of the Employment Act, the union letter of October 2013 never furnished names of affected employees, and the labour officer was never notified despite the respondent's witness admitting this. Applying Kenya Airways v Aviation & Allied Workers Union and following Thomas De La Rue v Omutelema, the court awarded three months' salary (Kshs.146,520) as compensation for the unprocedural redundancy. The underpayment claim failed because the claimant, though entitled to the acting allowance for the entire acting period, was never substantively appointed Head Chef and proved no Kshs.85,000 salary differential; the overtime claim failed for want of proof; and the certificate of service prayer was redundant as one had been issued. The respondent was ordered to pay the claimant's costs, with interest on the decretal sum from the date of judgment.

Key legal issues

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01

Whether the termination by redundancy was lawful

Holding

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.

Reasoning

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.

p. 4
02

Whether the claimant was entitled to underpayment for acting as Head Chef

Holding

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.

Reasoning

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.

p. 5
03

Whether the claimant proved unpaid overtime

Holding

Not proved.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Award of three (3) months' salary as compensation for unprocedural redundancy in the sum of Kshs.146,520
  2. 2.Dismissal of the prayers for underpayments and overtime
  3. 3.Respondent to pay the claimant's costs of the suit
  4. 4.Decretal sum to attract interest at court rates from date of judgment

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 40(1)(a)-(f)
  • Employment Act, 2007section 2 (definition of redundancy)
  • Labour Relations Actsection 2(1)

Cases cited (3)

  • Banking Insurance & Finance Union (Kenya) vs Murata Sacco Society Limited
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    Civil Appeal 46 of 2013
  • Thomas De La Rue (K) Ltd -V- David Opundo Omutelema
    (2013)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "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.