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ELRCPartially AllowedCause No 567 of 2015· [2021] KEELRC 659 (KLR)

Kenya Game Conservancy Tours and Safaris Workers Union v David Sheldrick Wildlife Trust [2021] KEELRC 659 (KLR)

Employment and Labour Relations Court
25 October 2021
3,405 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Kenya Union of Commercial, Food and Allied Workers sued on behalf of two grievants, Dismas Ondiek Getate and Kevin Nyaunga Gesairo, elephant keepers dismissed in August 2013 after refusing to sign a new fixed-term contract introduced by their employer. Following failed conciliation, they sought 12 months' compensation, one month's pay in lieu of notice, severance pay, unpaid August 2013 days and certificates of service. The Respondent did not participate despite service. The court framed four issues: employment relationship and duration, whether there was a redundancy, entitlement to reliefs, and costs. It found the grievants were employees in August 2013 but produced no proof of appointment dates, and Respondent letters indicated only half a year of service. The court rejected the redundancy characterisation, holding there was no evidence the Respondent contemplated redundancy. Instead, the unilateral variation of the contract was a fundamental repudiation and an unfair labour practice violating Article 41, entitling the grievants to compensation. Severance pay under Section 40(1)(g) was rejected. The court awarded each grievant two months' salary compensation (Kshs.24,000 and Kshs.22,000), one month's pay in lieu of notice (Kshs.12,000 and Kshs.11,000), and the uncontroverted August 2013 dues (Kshs.48,810 and Kshs.23,938), totalling Kshs.84,810 and Kshs.56,938 respectively, with costs assessed at Kshs.50,000 and interest at court rates from judgment. The claim thus partially succeeded, with the redundancy severance and maximum compensation refused.

Key legal issues

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01

Whether the grievants were declared redundant

Holding

No - the separation was not a redundancy but the result of the Respondent's unilateral variation of the employment contract

Reasoning

The court found no evidence that the Respondent contemplated a redundancy. The pith and substance was that the Respondent changed the contract terms and demanded signature on pain of leaving. The employees justifiably declined and were not privy to or consenting to the variations, so the redundancy case under Section 40 failed and severance pay was refused.

p. 3
02

Whether the unilateral variation of the employment contract constituted unfair termination

Holding

Yes - the unilateral variation was a fundamental repudiation of the contract and an unfair labour practice violating Article 41 fair labour practices

Reasoning

At common law variation must be mutual; the Employment Act requires consultation, and variation of essentials such as duration and remuneration without consent violates Article 41. The employer took advantage of superior bargaining power. The grievants were thus unfairly terminated and entitled to compensation under Section 49.

p. 4
03

Duration of service and entitlement to reliefs

Holding

The grievants served approximately half a year per the Respondent's letters; compensation limited to two months' salary, plus one month's pay in lieu of notice and unpaid August 2013 days

Reasoning

The grievants produced no documentary proof of appointment dates, and Respondent letters indicated half a year of service to 18th September 2013. Two months' compensation was comparable to the Kenya Credit Traders decision. Notice pay was due for termination without statutory compliance; the August 2013 claim was uncontroverted.

p. 3

Legal principles established

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  • Unilateral variation of a contract of service by an employer amounts to repudiation and violates the employee's right to fair labour practice under Article 41 of the Constitution
  • An employer seeking to vary terms of a contract of service must consult the employees and obtain their concurrence or disagreement
  • Redundancy requires both substantive and procedural compliance with Section 40 of the Employment Act; absent evidence an employer contemplated redundancy, a separation cannot be characterised as redundancy

Court orders

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  1. 1.Judgment entered for the grievant Dismas Ondiek Getate: 2 months' salary equivalent Kshs.24,000, one month's pay in lieu of notice Kshs.12,000, days worked in August 2013 Kshs.48,810, total Kshs.84,810
  2. 2.Judgment entered for the grievant Kevin Nyaunga Gesairo: 2 months' salary equivalent Kshs.22,000, one month's pay in lieu of notice Kshs.11,000, days worked in August 2013 Kshs.23,938, total Kshs.56,938
  3. 3.Costs of the suit assessed at Kshs.50,000/= payable to the Claimant
  4. 4.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 2 (definition of redundancy)
  • Employment ActSection 40, including 40(1)(g)
  • Employment ActSections 41, 43, 45, 46
  • Employment ActSection 49
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Advocates Remuneration OrderNot specified

Cases cited (8)

  • Kenya Union of Commercial Food and Allied Workers v Kisii Bottlers Ltd (2017) eKLR
    (2017) eKLR
  • Kenya Union of Commercial, Food & Allied Workers v Kisii Bottlers Limited [2021] eKLR
    [2021] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Kenya Credit Traders Limited [2020] eKLR
    [2020] eKLR
  • James Ang’awa Atanda & 10 others v Judicial Service Commission [2017] eKLR
    [2017] eKLR
  • Elizabeth Kwamboka Khaemba v BOG Cardinal Otunga High School Mosocho & 2 others [2014] eKLR
    [2014] eKLR
  • Kenya Plantation And Agricultural Workers Union v James Finlay (K) Limited [2013] eKLR
    [2013] eKLR
  • Jane Khalechi v Oxford University Press E.A Ltd (2013) eKLR
    (2013) eKLR
  • Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR
    [2014] eKLR
Jurisdiction invoked
First-instance jurisdiction under the Employment Act, 2007 over an unresolved trade dispute referred after failed conciliation

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 Game Conservancy Tours and Safaris Workers Union v David Sheldrick Wildlife Trust [2021] KEELRC 659 (KLR)", Case Analysis (2021). Cause No 567 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/659/eng@2021-10-25

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