Kirigo v World Vision International (Cause 1449 of 2016) [2022] KEELRC 1118 (KLR)
The bottom line
#A Kenyan court ruled World Vision unfairly made an employee redundant and awarded her five months' salary because the employer skipped required consultation and paperwork.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a genuine redundancy/restructuring justifying termination
The Respondent failed on a balance of probabilities to establish that there was a restructuring of the organization or the department, or that a genuine redundancy existed
Other than a supervisor's email of 23rd September 2015, no documentary evidence of restructuring was tendered; all organograms on record, including one circulated in October 2015, retained the Claimant's position; only the Claimant was affected; and the Respondent provided no organogram showing the position abolished. The Court accepted that restructuring does not just happen - it is an elaborate, consultative process with a beginning, life and end.
Whether the notice of redundancy complied with Section 40(1)(a) and (b) of the Employment Act
It did not. The letter was specific to the Claimant, communicated a decision already made, did not set out the reasons for and extent of the redundancy, and there was no evidence it was served on the Labour Officer
The letter referenced 'End Of Contract', was not a general notice, made no reference to consultations, and was not copied to anyone. RW1 asserted the Labour Office was informed but tendered no evidence of delivery or receipt. The notice was invalid for purposes of a redundancy since it communicated a decision rather than an intention triggering consultation.
Whether consultation before declaring redundancy is mandatory and whether it took place
Consultation is an imperative requirement implicit in Section 40(1) and it did not take place; the November 2015 meetings were ex post facto and ineffectual
Following Maraga JA's dicta in the Kenya Airways case and the Court of Appeal's endorsement in Barclays Bank, the notices under Section 40(1) are not merely for information and must elicit consultation. Here the Respondent engaged the Claimant only after the decision, and the letter itself suggested counselling, indicating she had not been consulted.
Whether the Claimant was entitled to compensation for the unexpired term of her fixed-term contract
The claim was declined; anticipatory benefits are not anchored in law where the contract has a termination clause
Following Elizabeth Wakanyi Kibe v Telkom Kenya Ltd and D.K. Njagi Marete v Teachers Service Commission, anticipatory earnings have no legal justification. The contract dated 1st June 2011 provided for termination by 30 days' notice or one month's salary in lieu, so there was no representation the Claimant would serve the full term.
What relief is due under Section 49 of the Employment Act
The equivalent of five (5) months' salary, Kshs.768,517.20, awarded as fair compensation
The Court considered the Section 49(4) factors: 4½ years of service and progression from Executive Assistant to Program Officer; satisfactory performance with no disciplinary issues; the Claimant's wish to continue working; and the unique circumstances - the contract had just been renewed for two years, September 2015 communications were represented as ordinary while the Supervisor concealed the separation agenda, and no effort was made to prepare the Claimant for exit.
Legal principles established
#- A court of law has no mandate to prevent an employer from restructuring or re-organizing its business or adopting modern technology as long as the law is complied with
- An employer bears the burden of demonstrating the reasons for and extent of a redundancy; the notice to the employee and the labour officer must set out the reasons for and the extent of the intended redundancy, and consultation is an imperative requirement before a redundancy is declared
- The notice of termination on account of redundancy should be the last step of the process; consultations must occur before the redundancy process is actualized, and post-decision meetings are ineffectual as consultations
- Anticipatory earnings or compensation for the unserved remainder of a fixed-term contract have no legal justification where the contract contains a termination clause
- Notice to the labour officer must be evidenced; an assertion of service without documentary proof means the employer has failed to discharge the burden of proof under Section 40(1)(a) and (b)
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for the sum of Kshs.768,517.20 being five months' salary equivalent under Section 49(1)(c) of the Employment Act
- 2.Costs of the suit awarded to the Claimant
- 3.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (including Section 12 and Section 49 remedies)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Moi v Windmill Limited (Cause 1073 of 2017) [2024] KEELRC 306 (KLR)[2024] KEELRC 306 (KLR)21 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "Kirigo v World Vision International (Cause 1449 of 2016) [2022] KEELRC 1118 (KLR)", Case Analysis (2022). Statement of Claim dated 25th July 2016 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1118/eng@2022-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.