Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 436 (KLR)

Kudheiha Workers Union v Sucham Investments Limited t/a Amani Tiwi Beach Resort (Cause E032 of 2023) [2024] KEELRC 436 (KLR)

Employment and Labour Relations Court
29 February 2024
1,321 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan hotel that sent 133 workers home during Covid-19 without proper redundancy notices must pay them full terminal dues.

What this practically means

#

Executive summary

#
The claimant, a registered trade union, sued on behalf of 133 former employees (grievants) of the respondent, a hotel operator and member of the Kenya Association of Hotelkeepers and Caterers, with which the union has a Collective Bargaining Agreement. The grievants were sent home in April 2020 at the onset of the Covid-19 pandemic, allegedly on indefinite leave, without written communication, adherence to the CBA, or payment of terminal dues. Despite engagement by the union's Kwale branch secretary, a report to the Minister, and a Conciliator's report dated 20 March 2023 finding that 106 grievants lost employment involuntarily, the respondent neither attended conciliation nor entered appearance or filed a response in court. Two grievants testified; the claimant relied on section 43 of the Employment Act, ILO Convention No. 158 and authorities on redundancy. The court held that although Covid-19 was beyond the employer's control, the employer was still bound to issue the statutory notices under section 40; leaving the grievants without communication amounted to unfair labour practices and unfair redundancy. Adopting the Conciliator's findings and applied authorities, the court directed an assessment of terminal dues - notice pay, severance pay, untaken leave, unpaid salaries, CBA service charges and other entitlements - to be tabulated before the Labour Officer, Kwale, and confirmed in court, with judgment entered in those terms and a report due on 14 March 2024. The prayer for re-engagement was not granted.

Key legal issues

#
01

Whether sending employees on indefinite leave during Covid-19 amounted to unfair redundancy

Holding

Yes - the respondent failed to issue statutory notices and left the grievants without communication, amounting to unfair labour practices and unfair redundancy

Reasoning

The court accepted that Covid-19 arose from matters beyond the employer's control, but held that the law under section 40 required the employer to issue the necessary notices. Leaving the grievants at large without communication resulted in unfair labour practices. With no appearance or response from the respondent, the court relied on the claimant's uncontroverted evidence and the Conciliator's report.

p. 3
02

Effect of the respondent's failure to enter appearance or file a response

Holding

The failure denied the court crucial evidence and records required under Sections 10(6) and (7) of the Employment Act, leaving the claimant's evidence uncontroverted

Reasoning

The respondent neither appeared nor filed any response despite service. The court noted this deprived it of the employment records the employer is bound to keep under section 10(6) and (7) of the Employment Act, 2007, and proceeded on the claimant's evidence, including testimony of two grievants and the Conciliator's report dated 20 March 2023.

p. 2
03

Relief payable on unfair redundancy

Holding

Terminal dues to be tabulated before the Labour Officer, Kwale, comprising notice pay, severance pay, untaken leave, unpaid salaries, CBA service charges and any other legal entitlement

Reasoning

The court adopted the Conciliator's fact-finding, which applied the CBA and made awards for notice pay, severance pay, unpaid service charge and compensation. Because an involuntary termination had occurred, the court directed an assessment of the enumerated dues, to be tabulated by the Labour Officer and confirmed in court.

p. 3

Legal principles established

#
  • A redundancy must be preceded by statutory notice under section 40(b) of the Employment Act and the employer must prove objective application of all redundancy parameters under section 40(a) and (c)
  • An employer who removes employees from the shop floor without due cause and fails to secure their employment rights commits a serious breach; Covid-19 did not excuse the section 40 notice requirements
  • Under section 40(1) of the Employment Act, a redundancy notice must be served in writing on the employee or union and the area Labour Officer at least one month before termination

Court orders

#
  1. 1.Assessment of terminal dues comprising notice pay based on years worked and CBA rate; severance pay for full years of service; pay for untaken leave days; unpaid salaries for days worked; CBA-allowed service charges; and any other legal entitlement at the end of employment due to redundancy
  2. 2.The claimant to attend before the Labour Officer, Kwale for tabulation of these dues
  3. 3.Attendance in court for confirmation of the dues owed to the grievants
  4. 4.Judgment entered in those terms
  5. 5.Report to be filed in court on 14 March 2024
Jurisdiction invoked
Original jurisdiction under the Employment and Labour Relations Court Act; claim filed under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kudheiha Workers Union v Sucham Investments Limited t/a Amani Tiwi Beach Resort (Cause E032 of 2023) [2024] KEELRC 436 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/436/eng@2024-02-29

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