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ELRCPartially AllowedELRC Cause (Memorandum of Claim dated 27th January 2017)· [2020] KEELRC 1367 (KLR)

Ibrahim Abdinur Mohamed v Ready Consultancy Limited [2020] KEELRC 1367 (KLR)

Employment and Labour Relations Court
12 March 2020
LNLINNET NDOLO
1,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ordered Texas Alarms Security to pay a former guard Kshs. 281,939 because his 'redundancy' dismissal skipped mandatory legal steps.

What this practically means

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Executive summary

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The Claimant, Ibrahim Abdinur Mohamed, sued the Respondent, Texas Alarms Security Limited, for compensation for unfair termination of employment and terminal dues, having been employed as a security guard on contractual terms from September 2009 at a monthly salary of Kshs. 21,359 and terminated by letter dated 10th October 2016. The Respondent denied the employment relationship, contending that a redundancy letter was erroneously issued, later recalled, and that the Claimant was offered a transfer to Kisumu on similar terms which he declined. The Respondent did not attend the trial but filed written submissions. The court framed two issues: whether the termination was unlawful, and whether the Claimant was entitled to the remedies sought. Relying on the definition of redundancy in Section 2 of the Employment Act and the Labour Relations Act, the court held that redundancy is undertaken at the employer's instance and the employee's conduct is not in question. The only solid evidence was the redundancy letter of 10th October 2016; the Respondent's allegations of refusal of transfer and a show cause letter were unsupported by any testimony and therefore unproved. The Respondent made no attempt to comply with the seven conditions under Section 40 of the Employment Act, which failure, following Fatma Ali Dabaso v First Community Bank Limited, amounted to unfair termination. The court awarded 8 months' salary in compensation, one month's notice pay, leave pay for one year, and severance pay for 7 years, totalling Kshs. 281,939, with interest at court rates from the date of judgment, a certificate of service, and costs to the Claimant.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful and fair

Holding

The termination was unlawful and unfair; the operative letter terminated the employment on account of redundancy without compliance with Section 40 of the Employment Act

Reasoning

The only solid evidence before the Court was the 10th October 2016 letter terminating the employment on account of redundancy. The Respondent's claims of a recalled redundancy, a transfer offer and a show cause letter were unsupported by testimony and unproved. The Respondent made no attempt to observe the Section 40 conditions (notices, objective selection criteria, payment of statutory dues), which failure amounts to unfair termination.

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02

Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded 8 months' salary in compensation, one month's salary in lieu of notice, leave pay for one year, severance pay for 7 years, a certificate of service and costs

Reasoning

Compensation was assessed at 8 months' salary considering length of service and the Respondent's breach. Notice pay was due for termination without notice. In the absence of leave records to the contrary, the leave pay claim succeeded. Having been declared redundant, the Claimant was entitled to severance pay.

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Legal principles established

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  • Redundancy bears two significant factors: it is undertaken at the instance of the employer, and the conduct of the employee is not in question
  • Failure by an employer to observe the conditions in Section 40 of the Employment Act when terminating on account of redundancy amounts to unfair termination of employment
  • Allegations against an employee that are not supported by evidence called before the court are unverified and unproved

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 281,939 comprising 8 months' salary in compensation (Kshs. 170,872), 1 month's salary in lieu of notice (Kshs. 21,359), leave pay for 1 year (Kshs. 14,951) and severance pay for 7 years (Kshs. 74,757)
  2. 2.Interest at court rates on the award from the date of judgment until payment in full
  3. 3.The Claimant to be issued with a certificate of service
  4. 4.The Respondent to pay the costs of the case

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 40
  • Labour Relations ActCorresponding section defining redundancy

Cases cited (2)

  • Jane I Khalechi v Oxford University Press E.A.Ltd
    [2013] eKLR
  • Fatma Ali Dabaso v First Community Bank Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Ibrahim Abdinur Mohamed v Ready Consultancy Limited [2020] KEELRC 1367 (KLR)", Case Analysis (2020). ELRC Cause (Memorandum of Claim dated 27th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1367/eng@2020-03-12

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