Radar Limited v Machera (Appeal E061 of 2022) [2023] KEELRC 1918 (KLR)
The bottom line
#A Kenyan court cut a Kshs. 517,629 employment award to about Kshs. 134,000 because proper redundancy notice wasn't copied to the labour officer.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Section 40 redundancy notification requirements for non-unionised employees
The notice was partially lawful; it should have been copied to the County Labour Officer since the employee was not unionised
Section 40 permits restructuring terminations for economic reasons. The employee received one month's notice with reasons. However, as he was not unionised, Section 40(1)(b) required written notice to the employee and the local labour officer. Citing Court of Appeal authority, both categories require the labour officer notification, so the termination lacked due process despite a justified reason.
Quantum of compensation for unfair termination
A blanket award of 12 months' compensation without reasons was unjustified; three months' compensation at Kshs. 55,971 was appropriate
The reasons for termination were purely operational, not disciplinary, and the employer substantially complied with Section 45(5) save for due process. Section 45(5)(2)(b)(ii) factors should have been considered. Three months' compensation based on the gross wage of Kshs. 18,657 was found appropriate.
Leave pay limitation period
Leave pay is due but limited to 18 months under Section 28(2); awarded at Kshs. 27,985.50
The appellant did not submit work records demonstrating how the respondent took annual leave under Section 28, so the pay was due. However, Section 28(2) limits claims to 18 months unless the employee shows leave was applied for and approved or declined. On the wage of Kshs. 18,657 for 18 months, leave pay is Kshs. 27,985.50.
House allowance
House allowance award not justified because the wage paid exceeded the applicable Minimum Wage Orders
The employment letter was not on record to show how housing rights under Section 31 were to be treated, and the respondent did not detail the wage history. In 2013 the minimum wage was Kshs. 10,911.70 and in 2020 Kshs. 15,141.95, while the respondent earned Kshs. 18,657; awarding house allowance over that wage would be unjust enrichment.
Legal principles established
#- Where an employee is not a member of a trade union, the redundancy notification under Section 40(1)(b) must be in writing to the employee and the local labour officer
- Leave pay claims are limited to 18 months back unless the employee demonstrates the leave was applied for but approved or declined by the employer
- Section 49(2) of the Employment Act, 2007 makes it mandatory for an employer to make statutory deductions from all payments made to an employee
- A blanket award of 12 months' compensation without reasons is not justified; compensation must reflect the employer's substantial compliance with Section 45(5)
Court orders
#- 1.Compensation Kshs. 55,971
- 2.Leave pay Kshs. 27,985.50
- 3.Public holidays Kshs. 50,230.60
- 4.50% of costs at the lower court
- 5.Awards above shall be subject to Section 49(2) of the Employment Act, 2007
- 6.For the appeal, each party shall bear own costs
- On appeal from
- Chief Magistrate's Court at Mombasa (ELRC)
- Mombasa CMERLC No. E045 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court under the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Radar Limited v Machera (Appeal E061 of 2022) [2023] KEELRC 1918 (KLR)", Case Analysis (2023). Appeal number not stated in judgment (arising from Mombasa CMERLC No. E045 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1918/eng@2023-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.