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ELRCPartially AllowedNot stated in judgment (cause filed 10th May 2018)· [2020] KEELRC 498 (KLR)

Kenya Tertiary & Schools Workers Union - KEWATSU v Board of Management Nyangori Boys High School [2020] KEELRC 498 (KLR)

Employment and Labour Relations Court
17 September 2020
MNMathews N. Nduma
2,005 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A school's 3-day-notice redundancy of six guards was unlawful — Kenyan employers must give one month's notice, consult, and report redundancies before terminating.

What this practically means

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Executive summary

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The claimant union sued on behalf of six grievants formerly employed as security guards by the respondent school, claiming compensation and terminal benefits for unlawful declaration of redundancy and termination by letter dated 26th January 2017, effective 31st January 2017. The parties dispensed with oral testimony and proceeded by written submissions. The respondent admitted the employment and the termination under section 40 of the Employment Act, 2007, but denied union membership, asserted compliance with the redundancy procedure, and claimed terminal dues were paid, producing only partial payment vouchers. The court framed two issues: compliance with section 40 and entitlement to reliefs. It found the respondent gave only about three days' notice instead of the mandatory one month, did not report the redundancy to the union, held no consultations, and gave no reason for termination. The respondent's assertion that the grievants were replaced by professional guards was unsupported by evidence, so there was no valid reason under sections 40, 43 and 45. The claimant discharged its burden under section 47(5) on a balance of probabilities. The court held the terminations unlawful and unfair and awarded each grievant compensation scaled to length of service under section 49(1)(c), plus gratuity and severance pay at 18 days per completed year, and notice pay. Claims for leave pay and overtime failed for want of proof. Compensation attracts interest from judgment; other terminal benefits from filing of suit. Costs to follow the event.

Key legal issues

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01

Compliance with the mandatory procedure for redundancy under section 40 of the Employment Act, 2007

Holding

The termination was unlawful and unfair: no one-month notice was given, no report was made to the union, and no consultation took place.

Reasoning

The letters of termination dated 26 January 2017 took effect on 31 January 2017, giving the grievants about three days' notice. The respondent did not report the intended redundancy to the union as required by section 40 and gave no reason for the termination. The respondent admitted it intended to replace the grievants with professional guards but led no evidence to substantiate this, so it had no valid reason under sections 40, 43 and 45.

p. 3
02

Entitlement to compensation and terminal benefits under sections 49(1)(c) and 40

Holding

Each grievant is entitled to compensation equivalent to a number of months' salary proportionate to length of service, plus gratuity, severance pay and notice pay.

Reasoning

All grievants lost employment on the same day, in the same manner, did not contribute to the termination, and were not compensated for job loss; the alleged victimisation for union membership was not sufficiently rebutted. Compensation was scaled to length of service (from one month to six months' salary). Gratuity and severance were computed at 18 days' salary per completed year under the Regulation of Wages Order (Security Services) 1998 and section 40. Leave and overtime claims failed for want of proof.

p. 3

Legal principles established

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  • An employer declaring redundancy must give at least one month's notice to the union or employees and report the intended redundancy as required under section 40 of the Employment Act; failure renders the termination unlawful and unfair.
  • Under section 47(5) of the Employment Act the claimant discharges its burden by showing on a balance of probabilities that the termination was wrongful and unfair.
  • An employer alleging a valid reason for redundancy must adduce evidence to substantiate it; mere allegations of replacing unprofessional guards without evidence do not satisfy sections 40, 43 and 45.

Court orders

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  1. 1.Compensation for unlawful and unfair termination awarded per grievant: Bilal Mustapha Deroni Kshs. 67,980; Gideon Kipyaker Owinto Kshs. 56,650.50; Joel Kiptarus Nyangari Kshs. 11,330.10; Benson Ologoro Kshs. 39,104.70; Martin Saina Kshs. 33,990.30; Haron Kiprop Kshs. 45,320.40
  2. 2.Gratuity awarded per grievant: Kshs. 152,073.81 (Deroni); Kshs. 39,104.70 (Owinto); Kshs. 10,138.25 (Nyangari); Kshs. 39,104.70 (Ologoro); Kshs. 22,811.05 (Saina); Kshs. 30,052.70 (Kiprop)
  3. 3.Severance pay under section 40 of the Employment Act awarded per grievant: Kshs. 152,673.80 (Deroni); Kshs. 39,104.70 (Owinto); Kshs. 10,138.25 (Nyangari); Kshs. 39,104.70 (Ologoro); Kshs. 30,052.70 (Kiprop); none awarded for Saina
  4. 4.Notice pay of Kshs. 11,330.10 awarded to each grievant
  5. 5.Claims for leave pay and overtime not proved and dismissed
  6. 6.Interest on compensation at court rates from date of judgment; interest on other terminal benefits from date of filing suit until payment in full
  7. 7.Costs to follow the event
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007

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, "Kenya Tertiary & Schools Workers Union - KEWATSU v Board of Management Nyangori Boys High School [2020] KEELRC 498 (KLR)", Case Analysis (2020). Not stated in judgment (cause filed 10th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/498/eng@2020-09-17

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