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ELRCDismissedMemorandum of Claim dated 18th June, 2020 (Employment and Labour Relations Court)· [2021] KEELRC 2215 (KLR)

Kenya Union of Commercial Food and Allied Workers v Tusker Mattresses Limited [2021] KEELRC 2215 (KLR)

Employment and Labour Relations Court
5 February 2021
MOMaureen Onyango
2,046 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Naivas' Covid-19-era branch closures and staff redundancies were lawful because the employer properly followed the Employment Act's notice and consultation steps.

What this practically means

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Executive summary

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The Claimant, a trade union with a Recognition Agreement dated 19th October 2012 and a registered Collective Bargaining Agreement effective 1st March 2017, challenged the Respondent supermarket's notice dated 22nd May 2020 of its intention to declare about eighty unionisable employees redundant following the closure of branches at Digo Road (Mombasa), Mtwapa (Kilifi), Tom Mboya (Nairobi CBD) and Megacity (Kitale). The Claimant sought a declaration that Covid-19 was not a reason to terminate employment, redeployment of the affected staff to other branches, an order that all categories of staff including outsourced labour be affected with Last In First Out applied, and costs. The Respondent maintained that due process under Section 40 of the Employment Act, 2007 was followed, that LIFO was inapplicable since entire branches were closed, and that financial distress forced the closures. The court framed two issues: whether the terminations amounted to unfair termination, and whether the Claimant was entitled to the prayers. It held that the notices to the union, labour officer and employees complied with Section 40(1)(a); that the Section 40(1)(c) selection criteria did not apply because all staff in the closed branches were affected; that the redundancy was due to poor performance exacerbated by the pandemic rather than the pandemic itself; and that the Claimant proved neither victimisation nor the existence of spared outsourced staff. The claim was dismissed with no orders for costs, judgment delivered virtually pursuant to the Chief Justice's Covid-19 directions.

Key legal issues

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01

Whether the redundancy of the Grievants was procedurally fair under Section 40 of the Employment Act, 2007

Holding

The redundancy was procedurally fair; the notices to the union, labour officer and individual employees complied with Section 40(1)(a) and the selection criteria did not apply as whole branches were closed

Reasoning

The Respondent issued notices on 22nd May 2020 to the County Labour Officer, the claimant and individual employees, communicating the intention to close four branches and attaching the names of affected staff, with redundancies to take effect on 20th June 2020. This satisfied Section 40(1)(a) as to notification, reasons and extent. Letters to individual employees were copied to the labour officer and the union. Because entire branches were being closed, the LIFO selection criterion under Section 40(1)(c) was inapplicable.

p. 3
02

Whether the redundancy was justified and non-discriminatory

Holding

The redundancy was driven by poor business performance exacerbated by the pandemic, not by Covid-19 alone, and there was no proof of discrimination or of retained outsourced staff

Reasoning

The notification letters explained that the branches were being closed due to poor performance of the Respondent's operations countrywide, exacerbated by the pandemic. The claimant led no evidence of victimisation or intimidation and did not prove the existence of outsourced staff who were spared. With all staff in the closed branches affected, including any outsourced staff, there was no discriminatory selection.

p. 3

Legal principles established

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  • Where an entire branch is closed, the selection criteria in Section 40(1)(c) of the Employment Act on seniority (LIFO) is not applicable because all employees in that branch are affected
  • Compliance with Section 40(1)(a) of the Employment Act is satisfied where the employer notifies the union and the local labour officer of the reasons for and extent of the intended redundancy not less than a month before the termination date

Court orders

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  1. 1.The claim is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 40(1)
  • Employment ActSections 40(1)(a) and (c) and 41
  • Employment Act, 2007Section 40(1)(c)
  • Labour Relations ActSection 73
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007; Labour Relations Act)

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 Union of Commercial Food and Allied Workers v Tusker Mattresses Limited [2021] KEELRC 2215 (KLR)", Case Analysis (2021). Memorandum of Claim dated 18th June, 2020 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2215/eng@2021-02-05

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