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ELRCPartially AllowedCause No 256 of 2015· [2020] KEELRC 706 (KLR)

Kenya Hotels and Allied Workers Union v Anoop Garg & 2 others [2020] KEELRC 706 (KLR)

Employment and Labour Relations Court
17 July 2020
MOMaureen Onyango
2,556 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ruled 23 catering workers were made redundant unprocedurally and awarded them full terminal dues, certificates of service, costs, and interest.

What this practically means

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Executive summary

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The claimant, a trade union representing hotel and catering employees, filed a memorandum of claim (dated 25 February 2015, amended 13 February 2018) on behalf of 23 grievants employed by the 3rd respondent, Daves Catering, whose proprietors are the 1st and 2nd respondents. The claimant alleged that after Nairobi Gymkhana declined to renew the catering contract effective 14 February 2015, the respondent declared the grievants redundant on 14 February 2015 without following procedure and withheld their terminal dues, tabulating each grievant's entitlements. The respondents filed a response on 24 April 2015 (but none to the amended claim), asserting the grievants absconded duty and breached contractual obligations, and prayed for dismissal with costs. The claim was disposed of by written submissions, only the claimant filing. The court framed two issues: whether the grievants were declared redundant or absconded duty, and their entitlement to remedies. Relying on Simon Mbithi Mbane v Inter Security Services Limited and Joseph Nzioka v Siment Coatings Limited, the court held an employer must demonstrate that an employee absconded. The respondents' own advocate's letter and the Gymkhana notice contradicted the abscondment claim, and no evidence supported it. The court found the grievants were declared redundant unprocedurally contrary to Section 40 of the Employment Act and awarded each grievant notice pay, leave, public holidays, severance pay and overtime as tabulated, plus certificates of service under Section 51. The claim for service gratuity for four grievants failed as it was not prayed for in the claim. Costs were assessed at Kshs.50,000, and interest awarded from the date of judgment.

Key legal issues

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01

Whether the grievants were declared redundant or absconded duty

Holding

The grievants were declared redundant; the respondents' averment of abscondment was unsupported by evidence and contradicted by the respondents' own advocate's letter and the Nairobi Gymkhana notice

Reasoning

The respondents did not deny the specific averments in the amended memorandum of claim. Their assertion that employees absconded was not supported by any evidence or demonstrable action. Their own advocate's letter of 11 February 2015 and the Nairobi Gymkhana notice of 31 January 2015 showed contracts ended due to non-renewal of the catering contract, establishing redundancy under Section 2 of the Employment Act.

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02

Whether the redundancy was procedural

Holding

The redundancy was unprocedural as the respondents did not comply with Section 40 of the Employment Act

Reasoning

Section 40 of the Employment Act prescribes the procedure for redundancy, including notification and payment of terminal dues. The court found the respondents did not comply with that procedure, rendering the redundancy of the grievants unprocedural and entitling them to terminal dues including notice pay, leave, severance pay, public holidays and overtime.

p. 4

Legal principles established

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  • An employer alleging that an employee absconded duty must demonstrate efforts to contact the employee
  • Termination of employment due to refusal by a landlord to renew a lease where no alternative premises are provided results in redundancy of the employees

Court orders

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  1. 1.Declaration that the grievants lost their jobs as a result of redundancy and that the respondents did not comply with the procedure set out under the Employment Act
  2. 2.Award of terminal benefits to each of the 23 grievants as tabulated (notice pay, leave, public holidays, severance pay and overtime), totalling the sums awarded per grievant
  3. 3.Each grievant to be issued a certificate of service in terms of Section 51 of the Employment Act
  4. 4.Respondents to pay the claimant's costs assessed at Kshs.50,000
  5. 5.The decretal sum to attract interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 2 (definition of redundancy)
  • Employment ActSection 40
  • Employment ActSection 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Simon Mbithi Mbane v Inter Security Services Limited
    (2019) eKLR
  • Joseph Nzioka v Siment Coatings Limited
    (2017) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Labour Relations Act/Employment Act; no specific provision cited in the judgment)

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 Hotels and Allied Workers Union v Anoop Garg & 2 others [2020] KEELRC 706 (KLR)", Case Analysis (2020). Cause No 256 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/706/eng@2020-07-17

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