Shamala v Starehe Boys’ Centre & School (Employment and Labour Relations Cause E426 of 2021) [2024] KEELRC 2713 (KLR)
The bottom line
#A Kenyan employer's Covid-19-era redundancy was ruled unfair because it skipped mandatory union notification, costing it over Kshs.591,000 plus costs and interest.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was unfairly terminated
Yes - the termination was a redundancy effected in breach of the mandatory procedure in section 40 of the Employment Act; the trade unions were not notified, no proper notice was given, no hearing was accorded, and the selection criteria were not disclosed.
The respondent admitted the claimant was a member of COTU and KUDHEIHA, so under section 40(1)(a) both unions and the labour officer had to be notified at least one month before the redundancy. Only the labour office was notified. The claimant was neither heard nor informed of terminal dues or the selection criteria, contrary to sections 41 and 43. Substantive justification and procedural fairness are both required.
Whether the claimant is entitled to the reliefs sought
Partially - the court awarded the equivalent of 10 months' salary as compensation, one month's salary in lieu of notice, severance pay, and unpaid salary for July and August 2020, but declined anticipatory salaries and allowances.
Having found the termination unfair, the court exercised its discretion under section 49 of the Employment Act. It held 12 months' compensation excessive and awarded 10 months. Notice pay was due under section 36. Severance pay was payable because the claimant was declared redundant. Anticipatory earnings for 13 years were speculative and unsupported in law.
Legal principles established
#- Where an employee is a member of a trade union, a redundancy notification must go to the union and the local labour officer at least one month before the effective redundancy date; failure to comply with section 40(1)(a) of the Employment Act renders the termination unfair.
- For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness.
- An employer's right to terminate on redundancy is regulated and conditioned by sections 40, 43 and 45 of the Employment Act.
Court orders
#- 1.Declaration that the respondent did not terminate the claimant fairly and procedurally; judgment entered in favour of the claimant
- 2.Award of damages for unlawful termination equivalent to 10 months' salary of Kshs.275,270
- 3.One month's salary in lieu of notice of Kshs.27,527 under section 36 of the Employment Act
- 4.Severance pay of Kshs.233,979.50
- 5.Unpaid salary for July and August 2020 of Kshs.55,054
- 6.Total award of Kshs.591,830.50
- 7.Costs of the claim awarded to the claimant plus interest at court rates of 14% per annum from the date of judgment till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 36, 40, 41, 42, 43, 45, 49) and Articles 28, 41(1), 47, 48 and 50(1) of the Constitution invoked in the claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shamala v Starehe Boys’ Centre & School (Employment and Labour Relations Cause E426 of 2021) [2024] KEELRC 2713 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2713/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.