Erick Ochieng Aram & 29 others v Foam Mattresses Limited & another [2019] KEELRC 2557 (KLR)

The evidence of all three claimant witnesses corroborated by RW1 and RW2 showed the 1st respondent controlled the claimants and paid their remuneration. The 2nd respondent merely provided oversight and management under a contract with the 1st respondent and did not hire or pay all of the claimants. Control and payment of remuneration were decisive indicators of the employment relationship.

Following the government ban on production, sale and use of plastics, the claimants who all worked in the plastics factory were told to go home with a promise of recall that never materialised. The claimants' services had become superfluous because continued manufacture of plastics was unlawful, fitting the statutory definition of redundancy as involuntary loss of employment at the employer's initiative where services are superfluous.

The ban on plastics gave the 1st respondent a valid reason under sections 40 and 43(1) and (2) to declare the claimants redundant. However, the respondents gave only a verbal general notice at the morning parade rather than one month's written notice to each employee and the labour officer, and failed to demonstrate the selection criteria applied. This violated the mandatory procedure in sections 40, 41 and 45, rendering the terminations unfair and entitling the claimants to compensation.

The court had regard to the similar circumstances and comparable service periods of the claimants (2013 to 2017), the fact that the termination was for no fault of their own but for operational reasons, that some terminal benefits were paid, and the sudden loss of work without notice. Following James Kiburi Mutia v Governor Meru County and another (2018) eKLR, where three months' salary was awarded for unprocedural and unfair termination, the court awarded three months' salary per claimant.