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ELRCAllowedNot indicated in the judgment as provided· [2020] KEELRC 527 (KLR)

Kenya Airline Pilots Association v Kenya Airways Public Limited; Central Organization of Trade Unions (Interested Party) [2020] KEELRC 527 (KLR)

Employment and Labour Relations Court
25 August 2020
6,377 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court blocked Kenya Airways' pilot redundancy because the notice skipped mandatory legal steps, even though the airline's financial crisis was genuine.

What this practically means

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Executive summary

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The Claimant, an association of pilots employed by Kenya Airways, moved the Employment and Labour Relations Court by Notice of Motion dated 17.8.2020 seeking an interlocutory injunction restraining the Respondent from implementing a redundancy notice dated 7.8.2020 issued to its members, and from bypassing the union by engaging members directly, on grounds that the notice violated section 40 of the Employment Act and Articles 41 and 47 of the Constitution. COTU supported the application as interested party. The Respondent opposed, citing severe financial distress worsened by the Covid-19 pandemic, and contending the notice was a lawful general notice inviting consultations, that damages were an adequate remedy, and that the balance of convenience favoured preserving the airline's commercial viability. Applying the Giella v Cassman Brown principles, Makau J found the redundancy substantively justified by the airline's acknowledged financial crisis, but held the notice non-compliant with the mandatory requirements of section 40(1)(a) - it failed to state the extent of the redundancy and was not served on the area labour officer - and that no meaningful consultations were held. The court held that termination through an unfair process causes irreparable harm since damages cannot restore the lost employment relationship, and that the balance of convenience favoured preserving the suit for trial. The application was allowed: interlocutory injunctions issued restraining implementation of the redundancy notice and direct engagement of members; service by electronic means was directed; costs were in the cause; and the respondent was given liberty to withdraw the notice and issue a proper one afresh.

Key legal issues

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01

Whether the redundancy notice dated 7.8.2020 complied with section 40(1) of the Employment Act

Holding

The notice did not comply with the mandatory requirements of section 40(1)(a): it did not indicate the extent of the intended redundancy and was not served on the area labour officer.

Reasoning

The court examined the notice and found the reason for redundancy set out in the background, but the extent of the intended redundancy was absent and there was no evidence of service on the area labour officer, which the respondent did not deny. The timelines in the letter of 14.8.2020 showed the selection process would be concluded within 14 days without involving the claimant, making the notice non-compliant with the mandatory statutory requirements.

p. 5
02

Whether the applicant established a prima facie case with probability of success

Holding

Yes - the applicant proved the notice was non-compliant with section 40(1) and that the respondent was proceeding unfairly without consultations.

Reasoning

Applying the Mrao definition, the applicant had to show on a balance of probability that the redundancy lacked substantive justification or that the procedure was unfair. The court found the financial crisis acknowledged by the applicant justified a commercial decision on substantive justification, but the procedural defects under section 40(1) and absence of meaningful consultation established an apparent infringement of a right calling for rebuttal.

p. 6
03

Whether irreparable harm would be suffered if the injunction was withheld

Holding

Yes - selected employees would permanently lose their employment and right to fair labour practices through an unfair and illegal process, which no monetary award can reverse.

Reasoning

The court held that damages under section 49 of the Employment Act are only a penalty to appease the employee and cannot reverse the violation or restore the lost employment relationship. Allowing the process to continue after finding it unfair and illegal would destroy the substratum of the suit and render it moot.

p. 6
04

Where the balance of convenience lay

Holding

The balance of convenience tilts in favour of granting the injunction to sustain the suit to full hearing.

Reasoning

If the order were denied, the respondent would conclude the impugned redundancy process and destroy the substratum of the pending suit before trial. Granting the injunction preserves the substance of the suit, giving effect to the right to hearing under Articles 47 and 50 of the Constitution and the rules of natural justice.

p. 7
05

Whether the intended redundancy was substantively justified

Holding

The applicant did not establish that the intended redundancy lacked a valid reason, as the respondent's financial crisis warranted a commercial judgment on workforce reduction.

Reasoning

The applicant's own supporting affidavit acknowledged the respondent's financial crisis and the grievants' agreement to salary deferments and an 81% salary cut to preserve the airline. This corroborated that the respondent was entitled to make a commercial judgment to remain viable, including workforce and fleet reduction, so no prima facie case arose on substantive justification.

p. 5

Legal principles established

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  • Redundancy is legitimate only where based on a valid reason of operational requirements and conducted in accordance with a fair procedure
  • Courts will not intervene in termination proceedings at the shop floor unless the intended action is illegal or violates the employee's rights under the Constitution, legislation or contract
  • Irreparable harm in employment relations relates not only to monetary compensation but to the employment relationship itself, which once terminated may not be restored
  • Consultation in a redundancy process must be real and not cosmetic

Court orders

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  1. 1.An interlocutory injunction issued pending the hearing and determination of the suit restraining the Respondent from effecting, continuing and/or implementing anything incidental to or related to the redundancy notice dated 7th August 2020 issued to the Claimant members
  2. 2.An interlocutory injunction restraining the Respondent from bypassing the Claimant and directly engaging the Claimant's members regarding any of the issues contained in the redundancy notice dated 7th August 2020
  3. 3.Service of the order and substantive pleadings on the respondent by electronic means to the official email addresses of the respondent's Group Managing Director/Chief Executive Officer and Chief Human Resource Officer due to the Covid-19 pandemic
  4. 4.Costs of the Application in the cause
  5. 5.The respondent given liberty to withdraw the offending redundancy notice and give a proper notice afresh

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Employment Actsection 40
  • Employment Actsection 49
  • Employment and Labour Relations Court (Procedure) Rules 2016Rules 17 and 28 (and Rule 28(3))

Cases cited (8)

  • Giella v Cassman Brown
    [1973] EA 358
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Mrao Limited v First American of Kenya Limited & 2 others
    [2003] eKLR
  • Mulwa Msanifu Kombo v Kenya Airways
    [2013] eKLR
  • Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Geoffrey Mworia v Water Resources Management Authority
    [2015] eKLR
  • William v Compare Maxam Ltd
  • Commish v Parliamentary Service
Jurisdiction invoked
Article 41 of the Constitution of Kenya and Rules 17 and 28 of the Employment and Labour Relations Court (Procedure) Rules 2016

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 Airline Pilots Association v Kenya Airways Public Limited; Central Organization of Trade Unions (Interested Party) [2020] KEELRC 527 (KLR)", Case Analysis (2020). Not indicated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/527/eng@2020-08-25

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