Kalume v Tamarind Group (Miscellaneous Application E549 of 2020) [2023] KEELRC 739 (KLR)
The bottom line
#A Kenyan court ruled that COVID-19 was a valid reason to end a hotel worker's job, but the employer still had to follow redundancy procedures.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination
Frustration on account of the covid-19 shutdown was a valid reason for termination at the time of termination; the reopening of the hotel did not revive the claimant's position
The respondent's business shut down due to the unforeseeable covid-19 pandemic and government directives, making it impossible to retain the claimant. Although the hotel reopened shortly after, no material evidence showed the reopening revived the claimant's position. Frustration as a reason was therefore valid at the time of termination.
Fairness of the termination procedure
The termination was procedurally unfair; the reason amounted to redundancy under section 2 of the Employment Act, requiring compliance with section 40, which was not shown to be impossible
Termination for frustration occasioned by covid-19 was not attributable to the claimant and fell within the statutory definition of redundancy. The respondent was bound to comply with section 40 of the Employment Act, including notice to the area labour officer and the claimant. No such notice was served, and the claimant was not prepared for the separation.
Whether the court could rewrite the signed salary reduction
The claimant freely signed the salary reduction; the court does not rewrite contracts freely entered into, so the underpayment claim failed
The respondent showed the claimant signed the letters reducing salary to Kshs 48,000.00. The court held it is not its role to rewrite contracts freely entered into, making the contractual last monthly salary Kshs 48,000.00 and collapsing the underpayment claims as unjustified.
Remedies for unfair termination
Eight months' compensation of Kshs 576,000.00 under section 49, plus two months' notice pay of Kshs 96,000.00, and severance pay of Kshs 72,000.00 at 15 days per year under section 40
Under section 49 the court considered the claimant's three years of clean service, legitimate expectation, and his concession to two pay cuts; the only mitigating factor was the valid reason. Severance at 15 days per year for three years was awarded per section 40, and the certificate of service was ordered.
Legal principles established
#- The covid-19 pandemic did not suspend the contractual and statutory procedures for terminating a contract of service; where termination amounts to redundancy, section 40 of the Employment Act must be complied with
Court orders
#- 1.Declaration that the termination was unfair for want of due procedure
- 2.Respondent to pay the claimant Kshs 744,000.00 (less PAYE) by May 2, 2023, failing which interest at court rates from the date of judgment till full payment
- 3.Respondent to deliver the certificate of service by May 2, 2023
- 4.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and terminal dues); no specific constitutional provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalume v Tamarind Group (Miscellaneous Application E549 of 2020) [2023] KEELRC 739 (KLR)", Case Analysis (2023). Misc Application No E549 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/739/eng@2023-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.