Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 296 of 2013· [2020] KEELRC 399 (KLR)

Transport Workers Union v Glory Driving School [2020] KEELRC 399 (KLR)

Employment and Labour Relations Court
9 October 2020
3,447 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

#

A Kenyan court ruled a driving school's redundancy of 29 workers was unfair because the employer skipped mandatory legal steps and acted right after signing a union agreement.

What this practically means

#

Executive summary

#
The Claimant, a registered trade union, sued on behalf of employees (Grievants) of the Respondent, a driving school company, whose services were terminated on account of redundancy on 11th March 2013 despite interim court orders. The Respondent attributed the redundancy to declining business volume and restructuring, asserting compliance with the law and the CBA. The court framed two issues: whether the redundancy amounted to unfair termination, and whether the Claimant was entitled to the reliefs sought. The court found the redundancy unfair: the Respondent adduced no evidence of financial constraints, opened new branches after the terminations, failed to show the selection criteria required by section 40(1)(c) of the Employment Act and paragraph 23(d) of the CBA, failed to notify and consult the union and labour officer as required, and did not prove payment of terminal dues. The timing of the redundancy immediately after conclusion of CBA negotiations led the court to find an unfair labour practice aimed at avoiding CBA benefits. The court awarded compensation for unfair termination on a sliding scale (3 to 12 months' salary depending on length of service), one month's notice pay, and salary for 10th to 26th March 2013 for the period the Respondent disobeyed court orders. Severance pay was declined as double compensation, and claims for underpayment, overtime, unauthorized deductions and pending leave failed for want of proof. The Respondent was ordered to issue certificates of service and to bear the costs. The judgment applies only to the 29 Grievants who signed the authority to act.

Key legal issues

#
01

Whether the redundancy amounted to unfair termination

Holding

Yes. The Respondent failed to comply with section 40(1) of the Employment Act and paragraphs 23(c) and (d) of the CBA, and failed to justify the redundancy

Reasoning

The Respondent did not prove financial constraints or any justification for the redundancies; it opened new branches after the terminations and re-engaged some grievants. It failed to show the selection criteria required by section 40(1)(c) and CBA paragraph 23(d), did not consult the union as required by CBA paragraph 23(c), and did not prove payment of terminal dues under section 40(1)(e), (f) and (g). The redundancy notices issued soon after CBA negotiations concluded, suggesting the redundancy was used to avoid CBA benefits.

p. 4
02

Entitlement to compensation, notice pay and unpaid salary

Holding

Compensation awarded on a sliding scale by length of service; one month's notice pay awarded; salary for 10th to 26th March 2013 awarded

Reasoning

Having found unfair termination, the court exercised its discretion under sections 45 and 49 of the Employment Act, considering length of service, the manner of the redundancy immediately after signing the CBA, and release without terminal benefits. Notice pay was due because the Respondent did not notify the union and labour officer as required by section 40(1)(a) and the CBA. Unpaid salary was awarded because the Respondent disobeyed court orders staying the redundancy.

p. 4

Legal principles established

#
  • An employer SHALL NOT terminate employment on account of redundancy unless it complies with all the conditions in section 40(1) of the Employment Act; failure to do so renders the termination unfair within the meaning of section 45
  • The employer bears the burden of proving the criteria used in selecting employees for redundancy, with due regard to seniority, skill, ability and reliability as required by section 40(1)(c)
  • An employer asserting financial constraint as justification for redundancy must adduce evidence to prove it; a redundancy declared immediately after concluding a CBA, without complying with section 40 or the CBA, may amount to an unfair labour practice

Court orders

#
  1. 1.A declaration that the termination of the 29 Grievants on account of redundancy amounted to unfair termination
  2. 2.Compensation for unfair termination: 3 months' salary for Grievants with 1-3 years' service; 5 months' salary for 4-6 years; 8 months' salary for 7-9 years; 12 months' salary for 10-18 years or more
  3. 3.One month's salary in lieu of redundancy notice for each Grievant
  4. 4.Payment of unpaid salary for the period 10th March to 26th March 2013, the Respondent having disobeyed court orders staying the redundancy
  5. 5.The Respondent to issue each Grievant with a certificate of service in line with Section 51(2) of the Employment Act
  6. 6.The Respondent to bear the costs of the suit
  7. 7.Tabulation of compensation and notice pay to follow the salaries in the schedule provided by the Claimant in its submissions, with length of service reckoned from the date of first appointment
  8. 8.The judgment applies only to the 29 Grievants who signed the authority to act

Authorities

#

Legislation

  • Employment Actsection 40(1)(a), (c), (d), (e), (f), (g)
  • Employment Actsection 45
  • Employment Actsection 49
  • Employment Actsection 51(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Bertha Awuor Kowido v Speed Capital Limited
    [2019] eKLR
  • Francis Maina Kamau v Lee Construction
    [2014] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Memorandum of Claim filed under the Employment Act); no specific constitutional or statutory provision invoked for jurisdiction in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Transport Workers Union v Glory Driving School [2020] KEELRC 399 (KLR)", Case Analysis (2020). Cause No 296 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/399/eng@2020-10-09

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