Yulu v Care International in Kenya (Employment and Labour Relations Cause E076 of 2022) [2024] KEELRC 2815 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the notice issued complied with section 40(1)(b) of the Employment Act
The letter of 12 March 2020 and notice to the Labour Officer bore the characteristics of a section 40(1)(b) notice
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.
Whether consultations preceded the termination
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
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.
Whether the selection criteria for the redundancy were demonstrated
The Respondent failed to demonstrate the criteria used to select the office/role to be abolished
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.
Whether the termination was substantively fair
The termination was substantively fair as the challenge was only on procedural fairness
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.
Entitlement to compensation under section 49(1)(c)
Claimant awarded three months' gross salary as compensation
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.
Legal principles established
#- 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
#- 1.A declaration that the termination of the Claimant's employment was substantively fair but procedurally unfair
- 2.Compensation pursuant to Section 49(1)(c) of the Employment Act of three months' gross salary, Kshs. 450,000
- 3.Interest on the compensation at court rates from the date of judgment till full payment
- 4.Costs of the suit awarded to the Claimant
- Jurisdiction invoked
- Employment Act, 2007, sections 40, 43, 45, 49(1)(c)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.