Patrick Amulele Ghalani & another v G4S Security (K) Limited [2019] KEELRC 1866 (KLR)
The bottom line
#Kenya's Employment Court ruled the redundancy unfair because the employer skipped the one-month notice and never stated its reason, awarding two long-serving guards seven months' pay each.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was procedurally fair
The termination was procedurally unfair: notice to the labour officer was shorter than required and claimants were not given the prescribed one month notice under section 40
The notice to the area labour officer dated 17.10.2012 was shorter than 10 days before effecting redundancy, and the claimants were never served the one month notice prescribed by section 40. The redundancy took effect on the same day the notice was served, making it abrupt. The Court held the claimants were not prepared for the redundancy, contrary to the procedural safeguards in section 40 of the Employment Act, 2007.
Whether there was a genuine reason for the redundancy
No valid reason was established because the redundancy notice did not disclose the reason for the termination
The respondent attributed the redundancy to changes in technology and methodology, but the notice itself did not state the reason. Section 43 requires the employer to prove the reason for termination. Since the notice omitted the reason, the respondent failed to discharge that burden, and the Court found the termination substantively unfair as well.
Entitlement to compensation under section 49
Each claimant awarded 7 months' salary as compensation for unfair termination
Weighing the claimants' long unbroken service of 16 and 15 years, their clean records, non-contribution to the termination, the failure to offer them re-employment as security guards, and that severance pay at 20 days per year exceeded the statutory minimum of 15 days, the Court balanced justice by awarding each claimant seven months' salaries in compensation under section 49 of the Act.
Entitlement to house and commuter allowance arrears
Claims dismissed as unjustified and time-barred
The claimants did not show any statutory or contractual entitlement to separate house and commuter allowances; upon promotion they received agreed consolidated pay which reasonably provided for accommodation. No grievance was raised during service. The grievances were continuing injuries that ceased on termination on 02.11.2012, so suits filed on 31.10.2014 were beyond the 12-month limitation under section 90.
Certificates of service
Claimants entitled to certificates of service under section 51 of the Act
Section 51 of the Employment Act entitles an employee whose contract has been terminated to a certificate of service. The Court found the claimants entitled and ordered the respondent to deliver the certificates to each claimant by 01.05.2019.
Legal principles established
#- An employer must serve the prescribed one month notice under section 40 of the Employment Act before redundancy and give adequate notice of the reason for redundancy; failure renders the termination procedurally unfair
- A redundancy notice that does not state the reason for redundancy means the employer fails to prove a genuine reason under section 43 of the Employment Act
- Claims for continuing contractual dues such as house and commuter allowance are subject to the 12-month limitation period under section 90 of the Employment Act after cessation of the continuing injury
Court orders
#- 1.Declaration that the termination of the claimants' employment by way of the redundancy notice of 02.11.2012 amounted to unfair and unlawful termination
- 2.The respondent to deliver to each claimant a certificate of service by 01.05.2019
- 3.The respondent to pay the 1st claimant Kshs. 203,360.00 and the 2nd claimant Kshs. 218,400.00 by 15.05.2019 failing interest at Court rates from the date of judgment until full payment
- 4.The respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 40, 43, 49, 51 and 90 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Amulele Ghalani & another v G4S Security (K) Limited [2019] KEELRC 1866 (KLR)", Case Analysis (2019). Not stated in excerpt (two consolidated statements of claims filed 31.10.2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1866/eng@2019-03-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.