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ELRCPartially AllowedEmployment and Labour Relations Court, Employment Cause· [2024] KEELRC 2815 (KLR)

Yulu v Care International in Kenya (Employment and Labour Relations Cause E076 of 2022) [2024] KEELRC 2815 (KLR)

Employment and Labour Relations Court
14 November 2024
5,316 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a redundancy is unlawful if the employer merely informs an employee of a decision instead of genuinely consulting them.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Procurement Coordinator in Dadaab from December 2017, sued over the termination of her employment on redundancy effective 12 April 2020, seeking a declaration that the redundancy was unfair, general damages for unfair termination and mental anguish, one month's salary in lieu of notice, and costs. The Respondent admitted the employment and asserted the redundancy, occasioned by funding shortfalls and restructuring, was lawful and that all dues were paid. The court framed two issues: whether the redundancy termination was fair and lawful, and whether the Claimant was entitled to the reliefs sought. It held that the notices issued to the Claimant and the Labour Officer complied with section 40(1)(b) of the Employment Act. However, the meeting of 12 March 2020 did not amount to genuine consultation; it merely conveyed a decision already taken, and the Respondent failed to demonstrate the criteria used to select the role for abolition - submissions by counsel not being a substitute for evidence. The termination was therefore procedurally unfair but substantively fair, since the attack was not on the genuineness of the operational reasons. Compensation of three months' gross salary (Kshs 450,000) was awarded under section 49(1)(c), considering the procedural nature of the liability and the remaining duration of the fixed-term contract. General damages for mental anguish were declined for want of proof, and notice pay was rejected as statutory notice was given. Judgment was entered for the Claimant on those terms with interest and costs.

Key legal issues

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01

Whether the notice issued complied with section 40(1)(b) of the Employment Act

Holding

The letter of 12 March 2020 and notice to the Labour Officer bore the characteristics of a section 40(1)(b) notice

Reasoning

The court examined the notice of termination dated 12 March 2020 and the notice to the Labour Officer dated 11 March 2020 and concluded they possessed the characteristics of notices contemplated under section 40(1)(b), being issued in writing to the employee and the Labour Officer for not less than 30 days prior to termination.

p. 8
02

Whether consultations preceded the termination

Holding

The meeting of 12 March 2020 was not a consultation; it merely informed the Claimant of a decision already taken, rendering the process procedurally unfair

Reasoning

Though section 40 does not expressly require consultation, judicial precedent and ILO Convention 158 imply it. The court found the 12 March 2020 meeting was a forum for notification of a fait accompli with no discussion on avoiding or minimising the redundancy, making the consultations cosmetic and the termination procedurally unfair.

p. 9
03

Whether the selection criteria for the redundancy were demonstrated

Holding

The Respondent failed to demonstrate the criteria used to select the office/role to be abolished

Reasoning

The organogram showed several administrative-level offices such as Logistics Coordinator; the Respondent did not explain why the Claimant's office was selected for abolition. Counsel's attempted explanation in submissions could not substitute for evidence, so the selection requirement of section 40(1)(c) was not satisfied.

p. 9
04

Whether the termination was substantively fair

Holding

The termination was substantively fair as the challenge was only on procedural fairness

Reasoning

The court held that although redundancy based on genuine operational requirements is legitimate, the Claimant's case attacked only procedural fairness, not substantive justification, so the court found the termination substantively fair but procedurally unfair.

p. 10
05

Entitlement to compensation under section 49(1)(c)

Holding

Claimant awarded three months' gross salary as compensation

Reasoning

Compensation under section 49(1)(c) is discretionary. Considering that liability attached only for procedural fairness failures and the remaining period of the one-year fixed-term contract, the court awarded three months' gross salary amounting to Kshs 450,000.

p. 10

Legal principles established

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  • Consultation is implied in section 40 of the Employment Act and must be genuine, not cosmetic
  • An employer must demonstrate and prove the criteria used to select the employee affected by redundancy; submissions cannot substitute for evidence
  • Redundancy is a no-fault termination placing particular procedural obligations on the employer

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was substantively fair but procedurally unfair
  2. 2.Compensation pursuant to Section 49(1)(c) of the Employment Act of three months' gross salary, Kshs. 450,000
  3. 3.Interest on the compensation at court rates from the date of judgment till full payment
  4. 4.Costs of the suit awarded to the Claimant

Authorities

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Legislation

  • Employment Act, 2007section 40(1)(a)-(g)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 49(1)(c)
  • ILO Termination of Employment Convention, 1982 (No. 158)general
  • ILO Recommendation No. 119 on Termination of Employment, 1963Article 15, Supplementary Provisions

Cases cited (12)

  • Hesbon Ngaruiya Waigi v Equatorial Commercial Bank Limited
    (2013) eKLR
  • Workers Union 7 others v Kenya Airways Limited, Cause No 1616 of 2014
  • Jane Khalachi v Oxford University Press E. A Ltd, Cause No 924 of 2010
  • Francis Maina Kamau v Lee Construction
    (2014) eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
  • Kenya Plantation & Agricultural Workers Union (KPAWU) v Finlays Tea (K) Limited
    [2022] eKLR
  • African Nazarene University v David Mutevu & 103 others
    [2017] eKLR
  • Gladys Muthoni Mwangi & 20 others v Barclays Bank of Kenya
    [2016] eKLR
  • Cargill Kenya Limited v Mwaka & 3 others
    [2021] KECA 115 KLR
  • Pamela Nelima Lutta v Mumias Sugar Co. Ltd
    [2017] eKLR
  • Onesmus Kinyua v Prudential Assurance
    [2022] eKLR
  • The Germany School Society & another v Ohany & another
    [Civil Appeal 325 & 342 of 2018 [Consolidated] [2023] KECA 894 [KLR] [24 July 2023]
Jurisdiction invoked
Employment Act, 2007, sections 40, 43, 45, 49(1)(c)

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, "Yulu v Care International in Kenya (Employment and Labour Relations Cause E076 of 2022) [2024] KEELRC 2815 (KLR)", Case Analysis (2024). Employment and Labour Relations Court, Employment Cause. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2815/eng@2024-11-14

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