Mercy Wangari Muchiri v Total Kenya Limited [2020] KEELRC 397 (KLR)

The court found the Claimant was aware of the restructuring at the meeting of 18th March 2015 and acknowledged the redundancy letter dated 8th April 2015, reading, understanding and accepting its terms, which were paid. The redundancy letter itself referred to the reorganisation and the downgrade of the administration function to a lower level, confirming that the reasons were communicated and discussed with her.

The Claimant alleged she was replaced by Pauline Maloba, but did not establish Pauline's seniority or relative performance, nor that she did not take over the role at the diminished, downgraded level. Since the last-in-first-out criterion applies only between employees of similar grade and similar performance, the court could not find a breach of the selection criteria; the Claimant was also clearly told at the meeting that her position would be downgraded out of management.

The notification of 8th April 2015 preceded termination on 30th April 2015, short of the one-month requirement, and the letter did not state the extent of the redundancy. However, the Claimant had been informed of the intended redundancy on 18th March 2015, accepted and signed the letter and was paid the terms, and only protested 10 months later; hence the defect warranted compensation, not invalidation of the redundancy.

Because the short notice was remedied by compensation and the substantive reason was valid and accepted by the Claimant, the prayer for a declaration of unfair termination under Section 45(1) failed, as did consequential remedies of reinstatement and re-engagement.