Anne Njambi Ngugi v Mediamax Network Limited [2020] KEELRC 1801 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the redundancy under section 40 of the Employment Act
The Respondent substantially complied with section 40: it issued a general notice, a specific notice to the Claimant copied to the Provincial Labour Officer, and the Claimant waived the 30 days' notice and was paid in lieu.
The Claimant was not a union member, so the union-notification conditions did not apply. The Court of Appeal in Thomas De La Rue was applied for the purposive reading that the same one-month notice period applies to non-union employees. The specific notice was copied to the Labour Officer, and although the effective dates in the notice were vague, the Claimant waived the notice period and was paid in lieu, amounting to substantial compliance.
Substantive fairness - proof of valid operational reasons
The Respondent failed to discharge the burden of proving valid operational reasons for the redundancy; the termination was substantively unfair.
Sections 43 and 45(2)(b)(ii) place the burden on the employer to prove the reasons for termination. The grounds advanced (restructuring, organisational efficiency, market challenges, economic downturn) were general statements unsupported by evidence such as industry trends or financial statements, and no studies establishing business-model inefficiency were disclosed. No alternatives such as pay cuts or redeployment were discussed with the Claimant before the dismissal.
Remedies for unfair termination
Compensation of Kshs 500,000/- awarded; general damages, service pay and severance pay refused; certificate of service to be collected by the Claimant.
Compensation is discretionary under section 49(4). Although not explicitly pleaded, it flows logically from a finding of unfair termination. The Respondent had paid salary in lieu of notice beyond what the contract provided, which informed the modest award. Service pay was barred by section 35(5) & (6) because the Claimant was eligible for a pension scheme and contributed to the NSSF. General damages lacked evidential and legal foundation.
Legal principles established
#- An employer bears the burden of proving valid operational reasons for a redundancy; general assertions of market challenges or economic downturn without evidential material do not discharge that burden.
- Where genuine redundancy reasons exist, discussions with employees should include alternatives such as pay cuts and other roles before dismissal.
- Compensation under section 49 may be awarded even where not explicitly pleaded, as a remedy that logically flows from a finding of unfair termination.
- Severance pay under section 40(1)(g) is payable on a pro-rata basis even to employees who have not completed a year of service.
Court orders
#- 1.Declaration that the Respondent did not prove the existence of valid operational reasons to terminate the Claimant's contract and that the termination was unfair
- 2.Award of compensation of Kshs 500,000/- to the Claimant
- 3.Claimant to collect her certificate of service from the Respondent if not already collected
- 4.Each party to bear own costs
- 5.Claimant denied the 8-month severance pay
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anne Njambi Ngugi v Mediamax Network Limited [2020] KEELRC 1801 (KLR)", Case Analysis (2020). Cause not stated in judgment (ELRC Claim instituted 17 March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1801/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.