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ELRCPartially AllowedCause No. 845 of 2017 (Formerly HCC 719 of 2006)· [2020] KEELRC 218 (KLR)

Charles Kasisi & 10 others v Kenya Broadcasting Corporation [2020] KEELRC 218 (KLR)

Employment and Labour Relations Court
11 November 2020
3,520 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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KBC's 2006 retrenchment of 257 workers was ruled unlawful because it skipped proper notice and consultation, with compensation now to be calculated.

What this practically means

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Executive summary

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The 1st to 10th Claimants, together with the Communications Workers Union suing on behalf of 257 former employees of Kenya Broadcasting Corporation, sued the Corporation after it retrenched them on 30 June 2006 pursuant to a staff rationalisation programme. They sought declarations that the Respondent was bound to discuss their terminations with them and the union, an order restraining terminations without agreed dues, damages and costs. The Respondent denied the claim, asserting the retrenchment was contractual and lawful, and challenged the union's locus standi for want of a recognition agreement and the suit for non-compliance with Section 46 of the KBC Act and civil procedure rules. The matter was transferred from the High Court to the ELRC in 2014, and only four Claimants testified. Applying Section 16A of the repealed Employment Act (Cap 226), the court found the retrenchment procedurally defective: the retrenchment letters took effect on 30 June 2006 but were received by the union on 3 July 2006, the one-month notice period was not given, and there was no consultation with the employees or their union before the redundancy was effected. Relying on Kenya Airways Limited v Aviation and Allied Workers Union, the court affirmed that consultation is an imperative requirement. The court did not squarely resolve the locus standi and preliminary objections raised. The Claim was found to have merit; the court directed the Claimant to file a schedule of the 257 employees and their salaries multiplied by 12 months for consideration and adoption as part of the judgment, and ordered the Respondent to pay costs with interest at court rates from the date of judgment.

Key legal issues

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01

Procedural fairness of the redundancy process

Holding

The retrenchment was procedurally flawed: the retrenchment letters took effect on 30/6/2006 but were received by the Union on 3/7/2006, with no one-month notice and no consultations

Reasoning

The court examined the retrenchment letters dated 28/6/2006 and found that although the letters were served on the Union, this was done too late, after the redundancy had already taken effect, and the requisite one-month notice period was not given. There was also no evidence of any consultation before the redundancy was effected, contrary to the repealed Employment Act and the principle of consultation explained in the Kenya Airways case.

p. 4
02

Applicable law to a 2006 retrenchment

Holding

The law applicable to the 2006 retrenchment was the repealed Employment Act (Cap 226), particularly Section 16A

Reasoning

The court held that because the retrenchment occurred in 2006, before the current Employment Act 2007 came into force, Section 16A of the repealed Employment Act (Cap 226) governed. That section required notification of the union and Labour Officer, due regard to seniority, payment of leave, one month's notice or wages in lieu, and severance pay of not less than 15 days per completed year of service.

p. 4

Legal principles established

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  • Consultation with the union and affected employees is an imperative requirement before redundancy is effected
  • Under Section 16A of the repealed Employment Act, no retrenchment could be effected without involvement of the union, proper notice and payment of dues
  • The notices under Section 40 of the Employment Act are not merely informational but are intended to give parties an opportunity to consider measures to avert or minimise terminations and mitigate adverse effects

Court orders

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  1. 1.The Claimant to submit a schedule of the 257 employees with their attendant salaries multiplied by 12 months to indicate payments due against each, to be submitted to Court for consideration and adoption as part of the judgment
  2. 2.The Respondents to pay costs of this suit plus interest at Court rates with effect from the date of the judgment

Authorities

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Legislation

  • Employment Act (Cap 226) (repealed)Section 16A
  • Employment ActSections 40 and 41
  • Labour Relations ActSection 5(2)(c); Section 2 (definitions of recognition agreement and collective agreement)
  • Constitution of KenyaArticle 41
  • Kenya Broadcasting Corporation Act, Cap 221Section 46
  • Civil Procedure RulesOrder 4 rule 1(2); Order 12 Rule 3(1)
  • Evidence Act, Cap 80Sections 107(1), 109 and 112
  • Trade Disputes Actcheck-off dues provisions

Cases cited (8)

  • Kenya Hotels & Allied Union v Anoop Gars & Others
    Cause No. 256 of 2015
  • KTJCFAW v Home Africa Ltd
    Cause No. 955 of 2018
  • Amos Munyi Njue v Denis Murithi Mutegi & another
    [2017] eKLR
  • Kenya Scientific Research International Technical and Institutions Workers Union v Black and Beauty Products & another
    [2018] eKLR
  • Gateway Insurance Co Limited vs. Jamila Suleiman & another
    [2018] eKLR
  • Kenneth Nvaga Mwige vs. Austin Kiguta & 2 Others
    (2015) eKLR
  • Kenya Airways Limited vs Aviation and Allied Workers Union Kenya and 3 Others
    Civil Appeal No. 46 of 2013, (2014) eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the ELRC Act following transfer from the High Court by order of Ougo J on 18/7/2014

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, "Charles Kasisi & 10 others v Kenya Broadcasting Corporation [2020] KEELRC 218 (KLR)", Case Analysis (2020). Cause No. 845 of 2017 (Formerly HCC 719 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/218/eng@2020-11-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.