Mburu v Bata Shoe Company (Employment and Labour Relations Cause E757 of 2021) [2024] KEELRC 468 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination on account of redundancy was fair and lawful
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
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.
Whether the Respondent discriminated against the Claimant on account of his disability
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
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.
Entitlement to 2 months' pay in lieu of notice
Allowed at Kshs 281,912 because the notice given (about 23 days) breached clause 4 of the contract providing for 2 months' notice
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.
Severance pay and critical illness benefit
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
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.
Legal principles established
#- 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
#- 1.2 months' pay in lieu of notice at Kshs 281,912 (140,956 x 2)
- 2.Severance pay allowed at Kshs 2,059,602
- 3.Compensation for unfair termination at 10 months' equivalent salary, Kshs 1,409,560
- 4.Work injuries/critical illness benefit of Kshs 1,545,160
- 5.Total award of Kshs 5,296,234
- 6.Interest at court rates from the date of judgment until full payment
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.