Lucky Wambui Mbuvi v China Communications Construction Company Limited

a) A declaration that the dismissal of the Claimant by the Respondent herein was unfair, unlawful and in violation of the Employment Act, 2007. b) Terminal dues in such sums as shall be assessed by this Honourable Court c) A certificate of service pursuant to Section 51 of the Employment Act Cap 226 Laws of Kenya. d) Costs of the suit. e) Interest on (b) and (d) above. f) Any other or further relief that this Honourable Court may deem fit to grant. 2. The Respondent filed a Statement of Defence dated 31 st August 2018 denying the alleged unlawful termination and averred that the separation was lawfully done on account of redundancy. It further averred that it paid the Claimant all his dues upon termination as such the reliefs sought are not merited. Therefore it prayed for the suit to be dismissed with costs. 3. The suit was referred to mediation but no resolution was reached and it was fixed for hearing. The Claimant testified as CW1 and called one witness Mr. Adam Nyae Ngoa who testified JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 2

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as CW2. The Respondent called its HR officer Ms. Veronica Ouko who testified as RW1. Thereafter both sides filed written submissions. Evidence 4. The Claimant adopted his statement dated 20/7/2018 as his evidence in chief and produced the following documents as exhibits:a) Demand letter dated 4th July 2018. b) Letter from Kajiado Labur Office to the Claimant dated 10 th November 2022. c) Respondent’s letter to the County Labour Office dated 5 th June 2018. 5. In court the Claimant’s NSSF statement, NHIF statement and Tax Returns were marked for identification while an unsigned letter from the Respondents personnel manager dated 11 th July 2018 was expunged from the record upon objection by the defence counsel. 6. In brief the Claimant’s case was that he worked for the Respondent for six months from July 2016 and left. He was later re-employed from 24th September 2017 and worked until 29th June 2018 when he was summoned to the office of Mr. Yao, JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 3

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Respondents in the Earthworks Department who accused him of theft of oil and summarily dismissed him from employment. 7. He contended that no evidence of the alleged theft was shown and the dismissal was done without affording any opportunity to be heard. A few days thereafter the Respondent attempted to force him to sign some mysterious documents but he declined. He also instructed an Advocate to serve demand letter and the Respondent’s personnel manager responded by a letter dated 11th July 2018 contending that it terminated the employment on account of redundancy. He denied the alleged redundancy and maintained that he was dismissed for alleged theft of oil. 8. He further stated that he was forced to work overtime for 7 days a week without compensation. He was also not given annual leave for the whole period of his service. He also also not given itemized payslips and some of his NSSF deductions were never remitted to the Fund. Therefore he prayed for the reliefs sought in the claim. 9. On cross examination he admitted that in between the first and the second contract he worked for the Respondent for a few days intermittedly. He confirmed that his appointment letter JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 4

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was not signed by the Respondent but he had signed his part. He admitted that he signed many documents during his time in employment but contended that he was never issued with any payslips despite his request. 10. He reiterated that he used to work 7 days in a week from 6:00 am to 6:00 pm during dayshift and from 5:00 pm to 06:30 am during night shift. He stated that on 24th June 2018 he was assigned the oil supply work but he was unable to get a curvature and after reporting to the supervisor he was assigned another work. 11. He reiterated that, on 28th June 2018 he was summoned to Mr. Yao’s office and he was dismissed without being heard. He contended that he was neither given termination letter nor redundancy letter. He stated that his supervisor is the one who told him to go see Mr. Yao. 12. He reiterated that his Advocate served demand letter and the Respondent replied. He also reported the matter to the Labour Officer who checked the office records and found a “Redundancy letter” from the Respondent. He admitted that he was doing construction work but he was not informed that it was nearing completion. He contended that he had signed a JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 5

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contract for a period of two years and maintained that he was dismissed for alleged theft of oil. He reiterated that he was not paid all his terminal dues as per the July 2018 payslip. He prayed for overtime pay at the rate of two (2) hours every day but admitted that his payslips showed that overtime pay. 13. CW2, Adam Nyae Ngoa adopted his statement dated 19 th December 2022 as his testimony in chief and also produced as exhibits the following documents:a) Letter from Kajiado County Labour Office dated 10 th November 2022. b) Respondent’s letter dated 5th June 2018 to the County Labour Office. 14. On cross-examination, he confirmed that he worked in the Labour Office Kajiado since October 2021 as a Labour Inspector and he is the junior most among the three officers in the office. He confirmed that he attended to the Claimant on 10 th November 2022 when he went to the office and showed him a redundancy letter. He also requested for confirmation whether the office had received the said redundancy letter. 15. RW1 confirmed that he checked the records and found the redundancy letter dated 5th June 2018 in the office file and JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 6

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gave the Claimant copies. The redundancy letter from the Respondent was however not signed. There was also no record of objection to the redundancy. He further stated that he was alone in the office when the Claimant visited and therefore he never spoke to any other officer. 16. RW1 Veronica Ouko adopted her statement dated 31 st August 2018 as her evidence in chief and produced 5 documents as exhibits. The documents were produced subject to further submissions on admissibility after the hearing. However document number 6, Claimant’s job card for June and July 2018 were expunged from the record pursuant to orders by my predecessor in the suit. 17. In brief, her evidence was that the Claimant was employed by the Respondent in construction of Nairobi - Naivasha SGR from 24th September 2017 to June 2018. The project was completed before expiry of the Claimants contract term and therefore it was terminated circumstances she on account of confirmed that redundancy. In the there need of was disciplinary proceedings. 18. On cross examination, she stated that the Claimant’s contract was not for a fixed term but it provided for probation period of JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 7

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60 days. She confirmed that the contract did not indicate his place of work, time and it was signed by the Respondent. He admitted that the Claimant used to work overtime depending on the supervisor but he was paid for the work done after the normal 8 hours. 19. She contended that the project ended in May, June and July 2018 depending on the sections. She contended that a redundancy letter dated 5th June 2018 was issued by the Personnel Manager and was served on the Labour Officer and the Claimant on the same date. It was stamped by the Labour Officer but the Claimant never signed. She was not aware that the Labour Officer testified that the letter was not signed by the Respondent. She admitted that the person who served the letters is not a witness. 20. She contended that there were consultations before the termination but there were no minutes of the meeting at the HR Office or Labour Office. She stated that she was based in Bulbul office while the Claimant was at Rongai. She stated that the HR Officer at Rongai told her that the Claimant refused to sign the Redundancy notice and the termination letter. Finally, JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 8

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she stated that that Claimant’s certificate of service was ready and the Claimant can go for it any time. Issues for determination 21. Having considered the pleadings, evidence and submissions, there is no dispute that the Claimant worked for the Respondent from September 2017 to June/July 2018 when they separated. The main issues for determination are:a) Whether the separation was through summary dismissal for misconduct or redundancy. b) Whether the separation fits the meaning of unfair/unlawful termination. c) Whether the Claimant is entitled to the reliefs sought. Summary dismissal or redundancy 22. The Claimant’s case is that he was dismissed by Mr. Yao on 29 th June 2018 for alleged theft of oil but the Respondent maintained that the termination was done on 5 th July 2018 on account of redundancy. It averred that it served the Claimant and Labour Officer a redundancy notice dated 5 th June 2018 but the Claimant refused to sign the same. 23. The Claimant produced copy of the redundancy notice and CW2 confirmed that in deed the notice was served on the JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 9

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Labour Office. The Claimant did not adduce any evidence to establish the allegation that he was dismissed for alleged theft of oil. Instead he produced documentary evidence and called a witness who confirmed that the separation was indeed on account of redundancy. Unfair/unlawful termination 24. The question that begs is whether the redundancy of the Claimant’s job amounted to unfair/unlawful termination Section 40 (1) of the Employment Act provides that:“(1) An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions— (a) where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy; JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 10

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(b) where an employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer; (c) the employer has, in the selection of employees to be declared redundant had due regard to seniority in time and to the skill, ability and reliability of each employee of the particular class of employees affected by the redundancy; (d) where there is in existence a collective agreement between an employer and a trade union setting out terminal benefits payable upon redundancy; the employer has not placed the employee at a disadvantage for being or not being a member of the trade union; (e) the employer has where leave is due to an employee who is declared redundant, paid off the leave in cash; (f) the employer has paid an employee declared redundant not less than one month’s notice or one month’s wages in lieu of notice; and JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 11

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(g) the employer has paid to an employee declared redundant severance pay at the rate of not less than fifteen days’ pay for each completed year of service.” 25. The above mandatory provision is derived from Article 13 and 14 of the ILO Convention 158 on termination of Employment which provides as follows:“(1) When termination the for employer reason of contemplates an economic, technological, structural or similar nature, the employer shall: (a) Provide concerned, the in workers good representatives time, with relevant information including the reason for the terminations contemplated, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out; (b) Give, in accordance with national law and practice concerned, the as workers early representatives as JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 12 possible an

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opportunity for consultation on measures to be taken to avert or minimize the terminations and measures to mitigate the adverse effects of any termination on the workers concerned such as finding alternative employment.” 26. The Kenyan statute and the ILO Convention are in sync in requiring that there must be justification or valid reason for carrying out redundancy, and the employer must follow a mandatory procedure that ensures fairness. In the instant case the reason cited in the redundancy notice dated 5 th June 2018 was completion of the project of SGR construction where the Claimant was working. 27. The Claimant did not adduce any evidence to rebut the Respondents evidence that the project of constructing SGR between Nairobi and Naivasha ended in or about July 2018 and especially the section under Rongai in Kajiado. Even if the Claimant’s contract was for an indefinite period, the completion of the project rendered his services superfluous. 28. Section 2 of Employment defines redundancy as:- JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 13

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“the loss of employment, occupation, job or career by involuntary means through no fault of an employee, involving termination of employment at the initiative of the employer, where the services of an employee are superfluous and the practices commonly known as abolition of office, job or occupation and loss of employment.” 29. In the circumstances I find and hold that the redundancy herein was a valid and fair reason for terminating the Claimants employment because it related to the employers operational requirements within the meaning of Section 45 2 (b) of the Employment Act. In Kenya Airways Ltd –v-Aviation & Allied Workers Union, Kenya & 3 others [2014] eKLR, the court underscored that termination “ based on operational requirement of the employer” refers to termination on account of redundancy attributable to the services of an employee being rendered superfluous. 30. As regards, the Procedure followed, there is no doubt that the Respondent wrote a redundancy notification to be served upon the Clamant and the Labour Officer. Section 40 (1) (a) and (b) provides that:- JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 14

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“(1) An employer shall not terminate a contract of service on account of redundancy unless the employer complies with the following conditions— (a) where the employee is a member of a trade union, the employer notifies the union to which the employee is a member and the labour officer in charge of the area where the employee is employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy; (b) where an employee is not a member of a trade union, the personally employer in writing notifies and the the employee labour officer;” [emphasis added]. 31. A copy of the redundancy notice to the Labour Officer was traced to the office by none other than the Claimant himself. He also called CW2, Labour officer who confirmed that the notice was served upon the County Labour Office at Kajiado. There is a stamp of the County Labour Officer Kajiado indicating the date as 5th June 2018. 32. However, there was no similar redundancy notice served on the Claimant. The only notice addressed to the Claimant was the final termination letter dated 5th July 2018 but there is no evidence that it was ever served on the Claimant. RW1 JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 15

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admitted that she is not the one who served the redundancy correspondences. Her evidence on the service was hearsay because she alleged that she was told by the HR Officer Rongai that the Claimant was served but refused to sign. 33. Having considered the evidence on record, I have reached the conclusion that the Claimant was never served with any notice of intention to carry out redundancy as required under Section 40 (1) (b). He was also never served with the termination letter dated 5th July 2018. 34. The redundancy procedure followed was therefore not compliant with the mandatory requirements of Section 40 (1) (b) of the Act and it therefore amounted to an unfair and unlawful termination of his employment within the meaning of Section 45 (2) of the Act. The said Section requires that termination of employment by an employer must be grounded on a valid reason and done in accordance with a fair procedure. Reliefs 35. In view of the above conclusion, I find that the Claimant is entitled to declaration that the termination of his employment JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 16

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by the Respondent was unlawful and unfair as it violated the Employment Act. 36. The Claimant prayed for terminal dues but left the same to the court to assess for him. However there is no clue pleaded of what kind of terminal dues are to be assessed. The Claimant did not plead any particulars of the terminal dues payable. In the circumstances, I am unable to assess any terminal dues as requested. 37. Besides, the Claimant produced his payslip for July 2018 and a corresponding bank statement showing that he was paid his terminal dues including salary in lieu of notice, salary for the days worked in July 2018, overtime pay, leave earned and transport pay upon redundancy totaling to Kshs. 38,792.65. The Claimant had served for less than one year and therefore severance pay was not available to him since Section 40 (1) ( g) of the Employment Act only provides for severance pay at the rate of 15 days pay for each completed year of service. 38. The prayer for certificate of service was not opposed and therefore I allowed it as prayed. 39. Finally the prayer for costs is merited since the suit has partially succeeded. JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 17

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Conclusion 40. I have found that the Respondent terminated the Claimant’s employment unlawfully by failing to follow the mandatory redundancy procedure set out under Section 40 of the Act. I have further found that the Claimant did not quantify the claim for terminal dues and therefore the court is unable to assess the same. However the prayer for certificate of service is granted as prayed. Finally I award the Claimant costs of the suit plus interest at court rates from the date of filling the suit. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: No appearance for Claimant Kamande for Respondent JUDGMENT IN ELRC CAUSE NO. 1256 OF 2018. 18

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