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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 1100 (KLR)

Kenya Union of Commercial Food and Allied Workers Union v Yemken Trading Company Limited (Cause E810 of 2022) [2024] KEELRC 1100 (KLR)

Employment and Labour Relations Court
16 May 2024
LNLinnet Ndolo
1,986 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Nairobi court ruled that skipping the one-month redundancy notice and hiding selection criteria makes a Kenyan redundancy unlawful, costing the employer six months' salary.

What this practically means

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Executive summary

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The Claimant union sued on behalf of its Grievant, Kevin Ooko Obare, Chief Shop Steward of the Respondent's unionisable employees, challenging a redundancy declared on 24th October 2022 and effected on 4th November 2022. The Claimant alleged the Respondent issued no redundancy notice, failed to disclose the extent of the redundancy, targeted the Grievant for his trade union activities, and intended to replace union members with outsourced labour. It sought declarations of unconstitutionality and unfairness, reinstatement or alternatively twelve months' salary, severance pay, notice pay, pending leave, November 2022 salary, a certificate of service and costs. The Respondent denied the union's mandate, cited financial constraints, and asserted compliance with Section 40 of the Employment Act. The court framed two issues: lawfulness and fairness of the termination, and entitlement to remedies. Applying Section 40 and Court of Appeal authority on the distinct one-month redundancy notification and implied duty of consultation, the court found the Respondent, by its own admission, issued no redundancy notice and proved no objective selection criteria, leaving the targeting allegation unrebutted. The termination was held unlawful and unfair. The court awarded six months' salary (Kshs. 150,000) with interest at court rates from judgment, disallowed claims for terminal dues as already paid, and awarded disbursement costs of Kshs. 20,000. Delivered virtually at Nairobi on 16th May 2024 by Linnet Ndolo, J.

Key legal issues

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01

Whether the termination of the Grievant's employment on account of redundancy was lawful and fair

Holding

Termination was unlawful and unfair for failure to issue the one-month redundancy notice and for lack of objective selection criteria

Reasoning

Section 40 of the Employment Act sets stringent conditions for redundancy, including one-month notice of reasons and extent to the union and labour officer, and objective selection criteria. The Respondent by its own admission issued no redundancy notice, fearing sabotage, which the court held afforded no justification to violate the law. The Grievant learned of the redundancy only on receiving the termination letter. The Respondent also failed to prove any selection criteria, leaving the union's targeting allegation unrebutted.

p. 5
02

Whether the Grievant is entitled to the remedies sought

Holding

Six months' salary in compensation awarded; other terminal benefit claims disallowed as already paid

Reasoning

Taking into account the Grievant's length of service and the Respondent's failure to comply with the law on redundancy, the court awarded six months' salary in compensation rather than the twelve months sought. Evidence showed terminal dues (severance, notice pay, leave, November salary) had been paid, so those claims failed. Reinstatement was not granted; compensation was the appropriate remedy.

p. 5

Legal principles established

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  • Redundancy notices under Section 40(1)(a) and (b) are separate and distinct from the termination notice under Section 40(1)(f)
  • An employer alleging targeting in redundancy selection must lay before the Court clear selection criteria

Court orders

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  1. 1.Judgment entered in favour of the Grievant in the sum of Kshs. 150,000 being six (6) months' salary in compensation for unlawful and unfair termination of employment
  2. 2.The amount to attract interest at court rates from the date of judgment until payment in full
  3. 3.Disbursement costs awarded to the Claimant assessed at Kshs. 20,000
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (specific provision not cited in judgment)

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, "Kenya Union of Commercial Food and Allied Workers Union v Yemken Trading Company Limited (Cause E810 of 2022) [2024] KEELRC 1100 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1100/eng@2024-05-16

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