Kamau v Eureka Electrosoft Solutions Ltd (Cause 2213 of 2017) [2023] KEELRC 2592 (KLR)
The bottom line
#A Kenyan employer who ends a worker's job because services are 'no longer needed' must follow redundancy rules or pay compensation, costs and interest.
What this practically means
#Executive summary
#Key legal issues
#Whether an employment relationship existed despite an oral contract
The three documents produced (advance repayment note, recommendation letter and bank statement) sufficiently proved the employment relationship
The claim was undefended, so the Claimant bore the burden of proving all facts, starting with the employment relationship. Although the contract was oral, the Claimant produced a document signed by Haravtar Singh recording employment at Kshs.23,000/= per month, a recommendation letter signed by the Respondent's Human Resource Manager, and an Equity Bank statement showing deposits by the Respondent. Together these satisfied the court that the Claimant was an employee on the terms pleaded.
Whether the termination was unfair
The termination amounted to a redundancy effected without compliance with Section 40 of the Employment Act, 2007, and was therefore unfair in both procedure and substance
Under Section 47(5) of the Employment Act, 2007, the Claimant had to prove unfair termination. His uncontroverted evidence was that on 15th July 2017 he was told his services would no longer be needed during the electioneering period and thereafter. This suggested his services had become superfluous, triggering redundancy procedures: no redundancy notice was issued and the local Labour Officer was not notified, contrary to Section 40. Following Enos Ireri v David Tours, the termination was unfair.
What reliefs flow from the finding of unfair termination
Declaration, one month's salary in lieu of notice, service pay, pay for July 2017, 2 months' salary as compensation and a certificate of service were awarded
Having found unfair termination, the court awarded notice pay because no notice or pay in lieu was given under Section 36; service pay because the Respondent did not remit NSSF contributions; salary for days worked in July 2017; compensation under Section 49(1)(c) limited to 2 months' gross salary considering the short service of about 1 year 6 months, the Claimant's failure to express a wish to continue in employment, non-contribution to the termination and non-appeal; and a certificate of service under Section 51.
Legal principles established
#- In an undefended employment claim, the claimant must establish all the facts of the claim, beginning with the existence of an employment relationship
- Terminating an employee because their services are no longer needed amounts to redundancy, which must comply with Section 40 of the Employment Act, 2007
Court orders
#- 1.Declaration that termination of the Claimant's employment by the Respondent was unfair
- 2.One month's salary in lieu of notice, Kshs.23,000.00
- 3.Service pay for 11/2 years, Kshs.18,169.84
- 4.Pay for days worked in July 2017, Kshs.11,500.00
- 5.Equivalent of 2 months' salary compensation, Kshs.46,000.00 (total Kshs.98,669.84)
- 6.Certificate of service
- 7.Costs of this suit to the Claimant
- 8.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and terminal dues claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau v Eureka Electrosoft Solutions Ltd (Cause 2213 of 2017) [2023] KEELRC 2592 (KLR)", Case Analysis (2023). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2592/eng@2023-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.