Ochada v Nyanza Reproductive Health Society (Cause 738 of 2012) [2014] KEIC 133 (KLR)
The bottom line
#Calling a dismissal 'redundancy' doesn't make it one — Kenyan courts look at the real reason, and immediate terminations still trigger notice pay.
What this practically means
#Executive summary
#Key legal issues
#Characterisation of the termination: redundancy or summary dismissal
Although the letter used the word redundancy, in effect it was a letter of summary dismissal for poor performance; it was not an abolition of office
The letter of 1st December 2011 stated the reason for termination as poor performance identified in the November appraisal. The statutory definition of redundancy under Section 2 of the Employment Act requires that the employee's services be superfluous or involve abolition of office. Since the Claimant's services were not deemed superfluous, the Section 40 redundancy procedure (including notification of the Labour Officer) was not triggered, and the document was in substance a summary dismissal.
Whether there was just cause for termination
There was just cause to terminate the Claimant's services on account of poor performance
The Claimant conceded that her appraisal score was below average. She alleged she was coerced to sign the appraisal of 10th November 2011, but there was no record of any contemporaneous protest against the appraisal process or the alleged coercion. The Court therefore accepted the appraisal as a valid basis for termination for poor performance.
Entitlement to terminal dues and notice pay
The Claimant was entitled to one month's salary in lieu of notice, pay for days worked, leave pay for 21 days and leave allowance
The Claimant could be terminated on payment of notice or after a written 30-day notice, but received neither, entitling her to a month's salary in lieu of notice. The Respondent's witness confirmed she was entitled to pay for days worked and accrued leave days, but the Respondent produced no records showing payment of November 2011 salary. These contractual safeguards and terminal dues were awarded.
Legal principles established
#- Where a letter of termination is stated to take effect immediately with no notice, the employee is entitled to payment of a month's salary in lieu of notice
- If a redundancy is to be declared, the employer is required under Section 40(1)(b) of the Employment Act to notify the employee and the Labour Officer
- A termination for poor performance is not a redundancy unless the employee's services are superfluous or the office is abolished
- An employee who alleges coercion to sign an appraisal must show contemporaneous protest; absent any record of protest, the appraisal stands
- A court will not interfere with an employer's discretion in awarding a salary increment absent capricious exercise to the employee's detriment
- Expectations of serving a full contract term must be tempered by the reality inherent in the freedom to contract; there is no automatic right to the balance of a terminated contract
Court orders
#- 1.Judgment entered for the Claimant for 1 month salary in lieu of notice – Kshs. 69,300/-
- 2.Salary for days worked
- 3.Leave pay for 21 days (69,300/30x21) Kshs. 48,510/-
- 4.Leave allowance – Kshs. 34,650/-
- 5.Costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court over employment and labour relations disputes (Employment Act 2007); specific provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochada v Nyanza Reproductive Health Society (Cause 738 of 2012) [2014] KEIC 133 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/133/eng@2014-01-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.