Mukunza v AC Nielsen Kenya Limited (Cause 1021 of 2017) [2023] KEELRC 861 (KLR)
The bottom line
#A Kenyan court ruled an employer's redundancy unlawful because it skipped notifying the labour officer and couldn't prove the job was truly abolished.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification of the redundancy
The respondent failed to prove that the claimant's position was abolished; no organizational structure or evidence of the restructure was produced, so the redundancy was substantively unfair.
Under Sections 43 and 45 of the Employment Act, the employer bears the burden of proving valid and fair reasons based on operational requirements. The respondent's emails showed adverse business conditions as an underlying cause, but the employer still had to show the termination was attributable to the redundancy — that the role became superfluous. No organogram or evidence of the restructure was produced, and the evidence of who performed the claimant's duties did not establish the role had ceased to exist.
Procedural fairness of the redundancy
The respondent failed to notify the labour officer and did not disclose or apply any selection criteria, thus not wholly complying with the mandatory requirements of Section 40(1).
Section 40(1) sets out mandatory preconditions to a lawful redundancy. Although the claimant received personal notice and was consulted, the respondent admitted it never notified the county labour office, and it offered no criteria for selecting the claimant among affected employees. Partial compliance is insufficient; the conditions must all be met. The termination was therefore unprocedural and unlawful.
Remedies
Reinstatement was not granted; the claimant received a declaration of unfair termination and 4 months' gross salary as compensatory damages.
Having found the redundancy both substantively and procedurally unfair, the court awarded compensatory damages calibrated to the length of the employment relationship. The decretal sum of Kshs 2,929,500.00 equated to four months' gross salary, with interest and costs to the claimant. The broader reliefs sought, including reinstatement, were not granted.
Legal principles established
#- All conditions in Section 40(1) of the Employment Act are mandatory; an employer cannot selectively comply.
- An employer must prove by evidence that the redundant position ceased to exist in its structure, failing which the redundancy is not substantively justified.
- Termination under redundancy must be both substantially justified and procedurally fair.
- Failure to notify the labour officer under Section 40(1)(b) renders the redundancy procedure incomplete and the employer at fault.
Court orders
#- 1.A declaration that the claimant's termination by the respondent by way of redundancy was unfair and unlawful.
- 2.The claimant is awarded compensatory damages being Kshs 2,929,500.00 which sum is equivalent to 4 months of his gross salary.
- 3.Interest on the amount in (b) at court rates from the date of Judgement until payment in full.
- 4.The claimant shall also have the costs of the suit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over a memorandum of claim for unfair termination by redundancy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukunza v AC Nielsen Kenya Limited (Cause 1021 of 2017) [2023] KEELRC 861 (KLR)", Case Analysis (2023). Memorandum of Claim dated May 26, 2017 (Amended January 30, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/861/eng@2023-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.