Kenya Union of Commercial, Food and Allied Workers v Shoprite Checkers Kenya Limited [2021] KEELRC 2089 (KLR)
The bottom line
#A Kenyan court upheld Shoprite's Nyali branch redundancy because the employer followed the Employment Act's one-month notice rules exactly.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent complied with Section 40(1) of the Employment Act in the redundancy at the Nyali Branch
The court found the Respondent complied with Section 40, having issued notices of intention to declare redundancy to the union and the Labour Officer at least one month before the intended termination date.
The court reproduced the redundancy notices dated 30th July 2020 issued to KUCFAW and the Mombasa Labour Office, both giving not less than one month's notice and stating the reasons for and extent of the redundancy. Relying on Thomas De La Rue, the court confirmed the notice requirements under s.40(1)(a) and (b). On that basis, the Respondent had shown sufficient proof of compliance with the statutory conditions.
Whether the LIFO principle applies in Kenyan redundancy law
LIFO is entrenched in Section 40(1)(c) of the Employment Act; longer serving employees are to be given preference where skill, ability and reliability are equal.
The court clarified that although the Respondent argued LIFO is not founded in law, s.40(1)(c)'s requirement of due regard to seniority in time is precisely what LIFO means: the last employee in is the first released, subject to skill, ability and reliability considerations. The court nonetheless did not grant relief on this basis because the redundancy had already taken effect.
Whether reinstatement or redeployment orders could issue after the branch had ceased trading
No such orders could issue because the Nyali outlet had ceased trading and the employees had left employment; the applications were overtaken by events.
As at 2nd September 2020 the Respondent had already closed the Nyali branch and employees had left its employment. Redeployment to other branches would aggravate an already bad situation since the redundancy grounds were that the Respondent could not sustain the staff. Orders would be futile as there would be no place of work to report to.
Legal principles established
#- The LIFO (Last In First Out) principle is entrenched in Section 40(1)(c) of the Employment Act as due regard to seniority in time in redundancy selection.
- Where redundancy notices have lapsed and employees have left employment, applications seeking to preserve employment are overtaken by events and dismissible.
Court orders
#- 1.Both the application dated 20th August 2020 and the application dated 25th August 2020 were dismissed
- 2.No orders as to costs (each party to bear their own costs)
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour disputes (not expressly cited; the matter concerns Section 40 of the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Shoprite Checkers Kenya Limited [2021] KEELRC 2089 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2089/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.