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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 869 (KLR)

Antonina Chebet v Pure Circle Kenya Limited [2021] KEELRC 869 (KLR)

Employment and Labour Relations Court
30 September 2021
HWHellen Wasilwa
2,183 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that declares redundancy without proper one-month notice, including to an employee on maternity leave, must pay hefty compensation.

What this practically means

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Executive summary

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The claimant, employed on 14 September 2010 as an administrative assistant on a renewable contract at a last salary of Kshs. 42,000, sued the respondent for unlawful and unfair termination on account of redundancy and non-payment of full terminal dues. She testified that she took maternity leave from April 2016, delivered on 25 April 2016, and while still on maternity leave was on 18 July 2016 summoned to the office and issued with a redundancy notice and a tabulation of terminal dues. The respondent contended that it followed due redundancy procedure, issuing notices dated 18 July 2016 to the claimant and the Labour Officer on account of financial difficulties, and that the claimant was paid Kshs. 95,287 in terminal dues and issued a certificate of service. The court found that the redundancy letter of 18 July 2016 served as notification but did not indicate the effective date, prior notice or the compensation payable, and that no proper notice of redundancy under section 40 of the Employment Act was issued. Applying section 45(2), the court held the employer had failed to prove a valid reason and fair procedure and found the termination unfair and illegal. The claimant was awarded Kshs. 627,200 comprising salary for July 2016, one month's notice pay, maternity leave dues, ten months' compensation for unfair termination, and severance pay for six years, less statutory deductions, together with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Compliance with section 40 of the Employment Act in redundancy

Holding

The redundancy notice did not comply with section 40: no notice was given before the redundancy and no compensation was indicated

Reasoning

The court examined the redundancy letter dated 18 July 2016 and found it served as notification but omitted the effective date and any indication of prior notice or compensation. Section 40 requires personal written notice to the employee and the labour officer of the reasons and extent of the redundancy not less than a month before termination. Absent these, due process was not followed and the termination was unfair and illegal.

p. 3
02

Unfair termination under section 45(2)

Holding

The employer failed to prove a valid reason and fair procedure, so the termination was unfair

Reasoning

Section 45(2) places the burden on the employer to prove a valid and fair reason and fair procedure. The respondent could not demonstrate compliance with section 40, and the claimant was issued a redundancy notice while still on maternity leave after being summoned to explain her leave. The court therefore found unfair and illegal termination.

p. 3

Legal principles established

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  • An employer who fails to comply with the notice and procedural conditions of section 40 of the Employment Act carries out an unfair redundancy
  • Unfair termination entitles the employee to compensation and terminal dues under section 45(2) of the Employment Act

Court orders

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  1. 1.Payment of 18 days salary for July 2016 (Kshs. 25,200/-)
  2. 2.One month salary in lieu of notice (Kshs. 42,000/-)
  3. 3.10 days maternity leave dues (Kshs. 14,000/-)
  4. 4.10 months' compensation for unfair termination (Kshs. 420,000/-)
  5. 5.Severance pay for 6 years at 15 days salary per year served (Kshs. 126,000/-)
  6. 6.Total award of Kshs. 627,200/- less statutory deductions
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007section 40
  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 51

Cases cited (4)

  • BIFU versus Sacco Society Limited
    [2010]
  • Agnes Ongadi –v- Kenya Electricity Company limited
    [2016] eKLR
  • Mercy Gakii Nabea –v- Malindi Management strategy Limited
    [2019] eKLR
  • Kenya Airways Limited –v- Aviation and Allied workers Union Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 40, 43, 45, 51)

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, "Antonina Chebet v Pure Circle Kenya Limited [2021] KEELRC 869 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/869/eng@2021-09-30

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