Meshack v Hipora Business Solutions (EA) Limited (Cause 322 of 2016) [2022] KEELRC 1266 (KLR)
The bottom line
#A Kenyan court ruled Tuskys' contractor unfairly terminated an employee's redundancy for skipping the required one-month notice to him and the Labour Officer.
What this practically means
#Executive summary
#Key legal issues
#Compliance with the redundancy procedure under Section 40(1) of the Employment Act
The redundancy was unfair because the Respondent failed to notify the Claimant and the Labour Officer at least one month before effecting the redundancy
Section 40(1) prescribes mandatory conditions for redundancy, including personal written notice to a non-unionised employee and notification of the labour officer not less than one month before termination. The court found no notification to the Claimant and no evidence of notification to the Labour Officer. Applying Thomas De La Rue, the court held that non-compliance rendered the termination unfair, entitling the Claimant to compensation under Section 49.
Burden of proof on special damages claims for off-duty days worked
The Claimant failed to plead and prove which off-duty days he worked, so no award was made
The contract entitled the Claimant to one off day per week. Having not specified which days he worked on his off days, and such a claim being in the nature of special damages, the Claimant was bound to plead and prove them. The court found no proof of unpaid work on off-duty days.
Employer's duty to rebut claims for unpaid public holidays and salary deductions
In the absence of employer records rebutting the Claimant's averments, the claims for holidays worked and the unexplained 19-hour deduction succeed
Under Sections 10(3)(a) and 74(1)(b) of the Employment Act, the employer bears the duty to keep and produce records evidencing payment. The Respondent adduced no evidence that the Claimant was paid for the eight public holidays worked, and did not explain the deduction of 19 hours not worked at Kshs.1,720.21. Both sums were awarded.
Legal principles established
#- Where an employee is not a member of a trade union, the notice under Section 40(1)(a) and (b) of the Employment Act must be given to the employee and the Labour Officer at least one month before the redundancy
- Failure to notify the employee and the local Labour Officer of an intended redundancy at least one month before it is effected renders the redundancy an unfair termination
Court orders
#- 1.Award of Kshs.2,000/- refund for uniform deduction
- 2.Award of Kshs.100,000/- being five months' salary as compensation for unfair termination
- 3.Award of Kshs.3,268/- being the difference between accrued leave paid and leave entitlement
- 4.Award of Kshs.12,304/- for public holidays worked but not paid
- 5.Award of Kshs.1,720.21 being unexplained deduction of 19 hours not worked from September 2015 salary
- 6.Costs of the suit awarded to the Claimant
- 7.Interest on the decretal sum at Court's rates from date of judgment to the date of payment in full
- Jurisdiction invoked
- First-instance jurisdiction of the Employment and Labour Relations Court under the Employment Act (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Meshack v Hipora Business Solutions (EA) Limited (Cause 322 of 2016) [2022] KEELRC 1266 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1266/eng@2022-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.