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ELRCPartially Allowednot_stated_in_judgment· [2024] KEELRC 468 (KLR)

Mburu v Bata Shoe Company (Employment and Labour Relations Cause E757 of 2021) [2024] KEELRC 468 (KLR)

Employment and Labour Relations Court
29 February 2024
7,768 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Bata unfairly terminated an ill employee through flawed redundancy, awarding him over Kshs 5.2 million.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 8th March 2004 as a Business Development Manager and later Advertising Manager, suffered partial paralysis following a road accident/stroke in February 2017. In January 2018 he was moved to a newly created position of Advertising Specialist at unchanged salary and benefits. On 7th July 2021 he was given a redundancy notice of less than 30 days and terminated on 30th July 2021, having earlier lost medical cover and registered as a person with disability. He sued for unfair termination, discrimination on account of disability, house allowance underpayment, pay in lieu of notice, severance pay and general damages of Kshs 10,000,000. The Respondent maintained it accommodated him and followed lawful redundancy procedure. The court found the Respondent produced no evidence of consultative meetings, did not notify the Labour Officer, did not rely on any medical report, and did not subject the Claimant to a medical examination; it accordingly held the termination unfair and unlawful. However, no discrimination was found: the reassignment was a reasonable accommodation with unchanged terms. The court awarded 2 months' pay in lieu of notice (Kshs 281,912), severance pay (Kshs 2,059,602), compensation of 10 months' salary (Kshs 1,409,560), and the critical illness benefit of Kshs 1,545,160, totalling Kshs 5,296,234. The house allowance claim was denied as an afterthought and the Kshs 10,000,000 general damages claim was declined. Interest was ordered at court rates from the date of judgment until full payment.

Key legal issues

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01

Whether the termination on account of redundancy was fair and lawful

Holding

The termination was unfair and unlawful: the Respondent produced no evidence of consultative meetings, did not notify the labour officer, and did not rely on any medical report or subject the Claimant to a medical examination before termination

Reasoning

Section 40(1) of the Employment Act prescribes mandatory redundancy requirements including personal written notice and notification of the labour officer at least one month before termination. The Respondent admitted it did not rely on any medical report and produced no minutes of alleged consultations. Section 41 hearing requirements and Section 45 substantive fairness also apply to redundancy. Failure of both tests rendered the termination unfair and unlawful.

p. 12
02

Whether the Respondent discriminated against the Claimant on account of his disability

Holding

No discrimination found; the court held the Respondent was attempting to find a more fitting job role befitting the Claimant's health condition, with salary and benefits maintained

Reasoning

The court accepted that the Claimant's condition would have made the strenuous Advertising Manager role difficult and that creation of the Advertising Specialist position, with unchanged salary and benefits, was a reasonable accommodation rather than discrimination. The Claimant's own B+ performance rating and testimony did not establish differential treatment on the ground of disability.

p. 14
03

Entitlement to 2 months' pay in lieu of notice

Holding

Allowed at Kshs 281,912 because the notice given (about 23 days) breached clause 4 of the contract providing for 2 months' notice

Reasoning

Clause 4 of the employment contract dated 16.02.2004 allowed termination on 2 months' written notice or payment in lieu. The redundancy notice of 07.07.2021 lapsing on 31.07.2021 was less than the contractual period, so the Claimant was entitled to 2 months' salary in lieu of notice at Kshs 140,956 per month.

p. 14
04

Severance pay and critical illness benefit

Holding

Severance pay of Kshs 2,059,602 allowed as the Respondent acknowledged terminal dues were owed but unpaid; critical illness benefit of Kshs 1,545,160 also awarded

Reasoning

RW1 testified the Respondent calculated all dues including severance pay and insurance benefits and issued cheques which the Claimant declined to collect. The Respondent was in agreement that it owed terminal dues and remains willing to pay; the court therefore allowed severance pay as part of the final settlement and the critical illness benefit of Kshs 1,545,160.

p. 15

Legal principles established

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  • Termination on grounds of sickness/incapacity requires support for the employee, a specific medical examination, and specific notice of impending termination; sick sheets and treatment notes do not suffice as medical reports for termination
  • Redundancy is a process, not an event; both substantive and procedural fairness apply to redundancy terminations under Sections 43 and 45 of the Employment Act
  • Consultation prior to redundancy must be real, not cosmetic, and the employer must notify the labour officer as required under Section 40
  • Disability per se does not translate to incapacity; an employer citing disability as reason for dismissal must prove the employee lacks capacity even with reasonable accommodation

Court orders

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  1. 1.2 months' pay in lieu of notice at Kshs 281,912 (140,956 x 2)
  2. 2.Severance pay allowed at Kshs 2,059,602
  3. 3.Compensation for unfair termination at 10 months' equivalent salary, Kshs 1,409,560
  4. 4.Work injuries/critical illness benefit of Kshs 1,545,160
  5. 5.Total award of Kshs 5,296,234
  6. 6.Interest at court rates from the date of judgment until full payment

Authorities

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Legislation

  • Employment ActSection 40(1)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 46(g)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 5(3)
  • Employment ActSection 31
  • Employment ActSection 32
  • Employment ActSection 74
  • Evidence ActSection 108
  • Persons with Disabilities ActSection 15(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • ILO Convention No.158 and Termination of Employment Convention 1982 / Recommendation No.166Article 13

Cases cited (12)

  • Antony Kipkorir Sang – Versus – Attorney General
    [2014] eKLR
  • Linnet Ndolo v Registered Trustees of the National Council of Churches of Kenya
    [2014] eKLR
  • Nisha Nileshbhai Bhavsar v Kensalt Limited
    [2022] eKLR
  • Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others
    [2020] eKLR
  • Kennedy Nyanguncha Omanga v Bob Morgan Services Limited
    [2013] eKLR
  • Ayub Imbira v Teachers Service Commission
    [2018] eKLR
  • Daniel Mburu Muriu v Hygrotech East Africa Ltd
    [2021] eKLR
  • Kenya Union of Domestic, Hotels, Educational Institutions, Hospital And Allied Workers (Kudheiha) V Nairobi Hospital
    [2022] Eklr
  • Kenya Airways Limited Vs Aviation & Allied Workers Union Kenys
  • Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Limited
    [2013] eKLR
  • LC v Sotik Tea Company Limited
    (Petition E002 of 2020) [2022] Keelrc 563 (KLR) (10 March 2022)
  • Miheso v Kaimosi Tea Estate Limited
    (Cause 346 of 2013) [2014] KEELRC 610 (KLR) (14 March 2014)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (Article 159(2)(d) and Article 48 invoked regarding virtual delivery)

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, "Mburu v Bata Shoe Company (Employment and Labour Relations Cause E757 of 2021) [2024] KEELRC 468 (KLR)", Case Analysis (2024). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/468/eng@2024-02-29

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