Automated Summary
Key Facts
Two employees (John Kisombe and Thomas Abanda) were terminated by Inchcape Kenya Limited on 9 July 2020, citing redundancy due to the impact of the COVID-19 pandemic, increased taxes, and reduced market demand. The employer claimed to have issued an internal memo (1 June 2020) and held a consultative meeting in July 2020, but provided no evidence the claimants received the memo or that the meeting occurred. The court found the termination unlawful and unfair due to failure to provide required redundancy notices, lack of documented consultation, and absence of objective selection criteria (e.g., seniority, skill). The claimants were awarded four months' salary each as compensation.
Issues
- Whether the termination of the Claimants' employment was lawful and fair under the Employment Act 2007, considering compliance with redundancy notice requirements and objective selection criteria.
- Whether the Claimants are entitled to remedies such as reinstatement or compensation for unlawful termination, as outlined in their claims.
Holdings
- The final judgment awarded the 1st Claimant Kshs. 380,000 and the 2nd Claimant Kshs. 675,800, with interest at court rates from the judgment date until full payment, and costs were awarded to the Claimants.
- Claims for compensation related to loss of future service and general damages were dismissed, as no evidence supported these requests.
- Reinstatement was deemed inappropriate due to the time elapsed since termination and the redundancy rationale, but the Claimants were awarded four months' salary in compensation.
- The court found that the termination of the Claimants' employment was unlawful and unfair, as the Respondent failed to comply with the legal requirements for redundancy under Section 40 of the Employment Act, including providing prior notice and following objective selection criteria.
Remedies
- The Claimants were awarded the costs of the case.
- The Claimants were awarded four (4) months' salary in compensation. The amounts awarded are Kshs. 380,000 for John Mwakoma Kisombe and Kshs. 675,800 for Thomas Mboya Abanda. This award was based on their length of service and the Respondent's failure to comply with Section 40 of the Employment Act.
- The compensation amounts will attract interest at court rates from the date of judgment until payment in full.
Monetary Damages
1055800.00
Legal Principles
- The standard of proof for redundancy justification was not met by the Respondent. The court noted the lack of documented consultation, absence of evidence supporting the 'last in, first out' selection method, and failure to properly notify the Labour Office as per statutory requirements.
- The court emphasized that the Respondent failed to meet the burden of proof required to demonstrate compliance with redundancy procedures under Section 40 of the Employment Act. The employer was required to show issuance of a redundancy notice, consultation, and objective selection criteria, but provided insufficient evidence.
Precedent Name
- The German School Society and another v Ohany and another
- Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
- Thomas De La Rue (K) Ltd v David Opondo Omutelema
Cited Statute
Employment Act 2007
Judge Name
Linnet Ndolo
Passage Text
- Instead, I award each Claimant four (4) months' salary in compensation.
- For the foregoing reasons, I find and hold that the termination of the Claimants' employment was unlawful and unfair.
- On the whole, the Respondent failed to prove issuance of a redundancy notice as required by law.