Showkat Hussain Badat v Oshwal Education & another [2022] KEELRC 157 (KLR)
The bottom line
#A Kenyan court awarded a former school director over Kshs. 14 million after finding his 'redundancy' dismissal lacked proper notice, consultation, and proof.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the redundancy
The 3rd August 2017 letter was a termination letter, not the one-month redundancy notice contemplated by section 40(1); no redundancy notice was issued and no consultation took place, so the termination was procedurally unfair.
Section 40(1) requires notices of not less than one month to the employee and labour officer, which elicit consultation. The letter terminated employment with immediate effect and its last day of work was 3rd August 2017, so it could not serve as notice. The Respondent's witness conceded there was no prior notice or consultation. Following Kenya Airways and Barclays Bank, two distinct notices are mandatory and consultation is implicit in the Act.
Substantive fairness of the redundancy
The Respondent failed to prove the validity of the redundancy reason; the alleged restructure was not evidenced and the true reason appeared disguised, so the termination was substantively unfair.
Sections 43 and 45 place the burden on the employer to prove the reason for termination. The Respondent merely asserted an organizational review; no minutes, organogram or evidence of alternatives was tendered, and the HR Manager was not involved in the decision. Assertions of an operational requirement without demonstration do not satisfy the statutory measure of validity.
Notice pay under contract versus section 40
The Claimant was entitled to six months' contractual notice pay; having received one month, he was owed five months' pay.
Clause 19 of the contract provided for six months' notice or salary in lieu. Section 40(1)(f) sets only the minimum statutory notice and cannot be invoked to deny a higher contractual entitlement; section 35(2) confirms the Act does not override contractually longer notice periods.
Compensation for unfair termination
The Claimant was awarded eight months' gross salary as compensation under section 49(1)(c), less than the twelve months claimed.
Compensation is discretionary and the maximum of twelve months is not automatic. The court considered the extent of the Respondent's deviation from the law, the breach of fair labour practices, the disguised reason, absence of fault by the Claimant and his reasonable expectation of employment length, and fixed compensation at eight months' gross salary.
Legal principles established
#- The one-month notice pay under section 40(1)(f) of the Employment Act is a statutory minimum and cannot defeat a contractual entitlement to longer notice; section 40 must be read with section 35(2).
- Consultation prior to declaration of redundancy is a requirement of Kenyan law, implicit in the Employment Act.
- An employer asserting redundancy bears a heavy burden to demonstrate the validity of the reason, not merely to assert it.
Court orders
#- 1.A declaration that the termination of the Claimant's employment was both procedurally and substantively unfair
- 2.Compensation for unfair termination of Kshs. 8,800,000.00
- 3.Unpaid notice pay of Kshs. 5,500,000.00
- 4.Interest on compensation and notice pay at court rates from the time of filing suit until full payment
- 5.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Showkat Hussain Badat v Oshwal Education & another [2022] KEELRC 157 (KLR)", Case Analysis (2022). Memorandum of Claim dated 20th February 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/157/eng@2022-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.