Kiratu v Jambojet Limited (Cause E724 of 2021) [2023] KEELRC 664 (KLR)
The bottom line
#Jambojet's COVID-19 redundancy was justified in principle, but the court awarded a pilot five months' pay because the process skipped mandatory notice and consultation steps.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification of the redundancy
The redundancy was substantively justified: the COVID-19 pandemic's impact on the aviation business was a fair, valid and operational reason under Section 45(2)(b)(ii)
The court took judicial notice of the pandemic's effect on the aviation industry, and the respondent exhibited performance reviews and emails showing reduced flights, low yields and pay cuts. The claimant's assertion that staff were on 100% pay was unsupported by evidence such as payslips. Accordingly the operational reason satisfied the statutory test.
Procedural fairness - notice under section 40(1)(b)
The 30th October 2020 notice was a final notice communicating an already-made decision, not the prior notice of intention required by section 40(1)(b); the respondent thus failed the statutory requirement
The notice issued to the claimant declared the redundancy and terminated his employment days later. No earlier notice of intention was proved. The online staff forums with business performance projections were monthly updates, not the statutory notice. Following Maraga JA's reasoning in the Kenya Airways case, the notice must precede the redundancy to elicit consultation.
Requirement of consultation
Consultation is required in redundancy, sourced in the ILO Convention No. 158 via Article 2(6) of the Constitution and implicit in the Employment Act; no evidence of consultation existed here
Although the Employment Act does not expressly require consultation, the court adopted Maraga JA's reasoning in the Kenya Airways case and the Court of Appeal decisions in Barclays Bank and Cargill Kenya, holding consultations must aim to avert, minimise or mitigate terminations. The change-management training merely prepared staff to cope with redundancy and did not amount to consultation.
Fairness of the selection criteria under section 40(1)(c)
The selection process was unfair and non-compliant because the criteria were communicated only after the decision and no evidence showed how they were applied to select the claimant
The criteria were communicated in the 30th October 2020 notice after the claimant had been declared redundant. There was no evidence of an evaluation exercise or of how the pool of staff in the claimant's category was narrowed down to him. The selection process therefore failed the requirement of due regard to seniority, skill, ability and reliability.
Payment obligations under sections 40(1)(e), (f) and (g)
The respondent complied with the payment requirements: three months' salary in lieu of notice, accrued leave and severance pay of Kshs 477,000.00 based on Kshs 318,000.00 monthly salary were paid
The redundancy letter provided for three months' salary in lieu of notice, accrued leave days and severance pay. The severance pay was calculated at fifteen days' pay per completed year on the monthly salary of Kshs 318,000.00, yielding Kshs 477,000.00, which was paid. The claimant did not substantiate his higher claim of Kshs 715,000.00.
Discrimination claim
The discrimination claim failed for want of particularization and evidence
The claimant alleged harassment and unequal treatment regarding sick leave but gave no names, dates or particulars, and did not adduce evidence that he applied for and was denied sick leave. The bare allegations could not sustain a finding of discrimination.
Legal principles established
#- A lawful redundancy must be both substantially justified and procedurally fair
- The statutory conditions in section 40(1) of the Employment Act preceding a redundancy are mandatory and cannot be selectively applied
- The notice under section 40(1)(b) is a notice of intention to declare redundancy, issued before the redundancy, to elicit consultation
- Consultation is an imperative requirement in redundancy, implicit in the Employment Act and sourced in ratified ILO conventions via Article 2(6) of the Constitution
- Redundancy consultations must be meaningful, not cosmetic, and geared towards averting or minimising terminations
- An employer must lead evidence of how selection criteria were actually applied to identify the employee declared redundant
Court orders
#- 1.A declaration that the claimant's termination by the respondent was procedurally unfair hence unlawful
- 2.The claimant is awarded compensatory damages in the sum of Kshs 1,590,000.00, equivalent to 5 months of his gross salary
- 3.Interest on the compensatory damages at court rates from the date of judgment until payment in full
- 4.The claimant shall have the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims (referenced to the Employment Act; specific enabling article not quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiratu v Jambojet Limited (Cause E724 of 2021) [2023] KEELRC 664 (KLR)", Case Analysis (2023). Cause No E724 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/664/eng@2023-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.