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ELRCDismissedNot stated in the judgment (Memorandum of Claim dated 20th August 2021)· [2023] KEELRC 2465 (KLR)

Wanjohi v Centum Investment Company PLC (Employment and Labour Relations Cause E696 of 2021) [2023] KEELRC 2465 (KLR)

Employment and Labour Relations Court
13 October 2023
AMAnna Ngibuini Mwaure
3,820 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an employee's claims of unfair redundancy and gender discrimination because the employer followed the correct legal process and paid all dues.

What this practically means

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Executive summary

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The Claimant, employed on 31st July 2018 as a communications associate at a gross monthly salary of Kshs. 300,000 and confirmed on 1st May 2019, sued her former employer alleging that her position was unlawfully declared redundant following an internal restructuring of the Investor Relations Function, and that the redundancy was a pretext masking gender discrimination, pointing to the later engagement of Mr Ed Angima at nearly double her salary. She claimed the process lacked genuine consultation, timeous notice, consideration of seniority, skill and reliability, and alternative placement. The Respondent defended the redundancy as a bona fide operational decision to outsource the investor relations function on a need basis to consultants, relying on the notice issued to the Labour office on 3rd June 2019, notice to the Claimant on 5th August 2019, subsequent consultations, a computed redundancy package, and payment of final dues acknowledged by the Claimant. The court framed three issues: fairness of the redundancy, gender discrimination, and entitlement to reliefs. Applying sections 40(1), 45(2), 47(5) and 5 of the Employment Act, and relying on Cargill Kenya Limited v Mwaka and Janine Buss, the court held the Claimant's role fell within the restructured investor relations department, that the Respondent had substantive justification and observed fair procedure including consultation and redeployment efforts, and that no discrimination was proved since Ed Angima was a consultant engaged for multiple roles. The suit was dismissed with each party bearing their own costs; the only order in the Claimant's favour was issuance of her certificate of service within 30 days if not already given.

Key legal issues

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01

Whether the redundancy was substantively and procedurally fair

Holding

The termination was lawful, fair and procedurally justifiable; the Respondent had a substantive justification based on operational requirements after restructuring and outsourcing the investor relations function.

Reasoning

The court found the Claimant's role sat within the investor relations department affected by restructuring and outsourced to ProMedia Limited. Notice was served on the Claimant and the Labour office on 3rd June 2019, consultations ensued, redeployment attempts were made but failed as she only had media experience. Both substantive and procedural fairness under sections 40 and 45 of the Employment Act were satisfied.

p. 8
02

Whether the Claimant was discriminated against on grounds of gender

Holding

No discrimination was proved; the replacement, Mr Ed Angima, was a consultant retained for multiple roles and not simply hired to replace the Claimant.

Reasoning

Under section 5 of the Employment Act and Janine Buss, the burden of disproving discrimination lay with the employer once raised, but the Claimant herself acknowledged Ed Angima was a consultant undertaking the investor relations role among others. The Respondent showed female employees led subsidiaries and the Claimant was hired while pregnant and given flexible hours. The discrimination claim failed.

p. 8
03

Whether the Claimant was entitled to the reliefs sought

Holding

Not entitled; she was paid notice pay, redundancy pay, severance, leave and insurance dues and executed clearance forms confirming the same.

Reasoning

The court listed the dues paid, including one month's salary in lieu of notice, redundancy pay, severance at 15 days per year, leave balance and insurance redundancy sums, all settled. The Claimant testified she was paid her dues and signed clearance forms. The only outstanding item was the certificate of service, which was ordered to be issued.

p. 8

Legal principles established

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  • An employer must comply with the conditions in section 40(1) of the Employment Act, including notification and consultation, before terminating on account of redundancy.
  • The burden of justifying the grounds for termination of employment rests on the employer, while the burden of proving unfair termination rests on the employee.
  • The burden of disproving an allegation of discrimination lies with the employer under section 5(6) of the Employment Act.

Court orders

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  1. 1.The Claimant to be given her certificate of service within 30 days if not already given.
  2. 2.The Claimant's suit is dismissed as unmerited.
  3. 3.Each party to meet their respective costs.

Authorities

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Legislation

  • Employment ActSection 40(1)
  • Employment ActSection 45(2)
  • Employment ActSection 47(5)
  • Employment Act, 2007Section 5(2) and (3)
  • Employment ActSection 5(6)
  • Constitution of KenyaArticle 47
  • Fair Administrative Action ActSection 4(3)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Cargill Kenya Limited v Mwaka & 3 others
    (Civil Appeal 54 of 2019) [2021] KECA 115 (KLR)
  • Kenya Airways Limited and Aviation & Allied Workers Union Kenya & 3 others
  • Janine Buss v Gems Cambridge International School Limited
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wanjohi v Centum Investment Company PLC (Employment and Labour Relations Cause E696 of 2021) [2023] KEELRC 2465 (KLR)", Case Analysis (2023). Not stated in the judgment (Memorandum of Claim dated 20th August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2465/eng@2023-10-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.