Ngure v Board of Management of Sigona Golf Club (Cause E286 of 2021) [2024] KEELRC 1821 (KLR)
The bottom line
#A Kenyan court ruled that even a justified COVID-19 redundancy was unfair because the employer couldn't prove the abolished position, but limited compensation to three months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent (Board of Management) is a proper party
Yes; it is the Board of Management of the Club and falls within the expansive statutory definition of 'employer'
Section 2 of the Employment Act defines 'employer' to include the agent, foreman, manager or factor of the contracting entity. The Respondent admitted it is the Club's Board of Management, so it is not distinct from the Club. The Court applied Daniel Mutisya Masesi v Romy Madan, holding the whole economic enterprise may be looked at.
Substantive justification of the redundancy
Found substantively justified - loss of business due to COVID-19 satisfied Section 45(2)(b)(ii)
The Court took judicial notice of COVID-19's disruption to the hospitality and recreation sector, including Government containment measures. The reason advanced - loss of business and economic constraints - was held fair, valid and based on operational requirements, consonant with Section 45(2)(b)(ii) of the Employment Act.
Procedural fairness of the redundancy
Not procedurally fair; the Respondent failed to prove the position was abolished so as to dispense with the Section 40(1)(c) selection criteria
Notification, consultation and payment requirements were met, but the employer asserted the position was entirely abolished without leading evidence such as an organizational structure to prove it. Having failed to discharge that burden, the Respondent could not escape the seniority/skill/ability/reliability criteria, rendering the termination procedurally unfair.
Unpaid salary for July to September 2020
Awarded; deductions beyond June 2020 were unauthorized since the agreed review never occurred
The Claimant consented to a salary reduction only for May and June 2020, subject to review by 15th June 2020. No evidence of review was adduced, so continued deductions in July to September were irregular and without consent, entitling her to a refund of Kshs 39,874.00.
Legal principles established
#- The definition of 'employer' under Section 2 of the Employment Act is expansive and includes agents, foremen and managers, so bodies standing behind a corporate employer may be properly joined.
- Termination on account of redundancy must be both substantively justified and procedurally fair under Sections 40 and 45 of the Employment Act.
- An employer who claims the selection criteria in Section 40(1)(c) is inapplicable because the position was abolished must prove that abolition, failing which the redundancy is procedurally unfair.
- Salary reductions consented to only for a fixed period cannot continue unilaterally after that period without fresh consent.
Court orders
#- 1.Compensatory damages equivalent to three months of the Claimant's last salary, being Kshs. 132,912.00
- 2.Kshs 39,874.00 awarded as unpaid salary for July to September 2020
- 3.Total award of Kshs 172,786.00
- 4.Interest on the total award at court rates from the date of Judgment until payment in full
- 5.Certificate of Service to issue within 30 days from the date of Judgment pursuant to Section 51(1) of the Employment Act
- 6.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; reliefs framed under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngure v Board of Management of Sigona Golf Club (Cause E286 of 2021) [2024] KEELRC 1821 (KLR)", Case Analysis (2024). Cause No E286 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1821/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.