Automated Summary
Key Facts
Catherine Chepkasis worked as a Cleaner for Oneway Cleaning Services Ltd from 2007 to 2014. Her employment was verbally terminated on 30.9.2014 after the Respondent's contract at Pali House expired. The Respondent cited gender (night shift at Kahamas Hotel was unsuitable for a lady) and academic qualifications (Standard 7 graduate with limited English proficiency) as reasons for termination. The court found the termination unjust and unfair, noting the employer failed to provide required one-month written notice under Section 40 of the Employment Act. The Claimant received 3 years of house allowance, 2 years of accrued leave, and 6 months' compensation for unfair termination, totaling Kshs.121,040.
Issues
- The court determined whether the termination of the Claimant's employment was unfair and unjust, particularly as it was a redundancy not executed according to the procedures in Section 40 of the Employment Act.
- The court assessed whether the Claimant is entitled to the requested reliefs, including one month salary in lieu of notice, accrued benefits, and compensation for unjust termination under the Employment Act.
Holdings
- The court declared the Claimant's termination unfair and unjust, as it was not done according to the procedures outlined in Section 40 of the Employment Act. The termination was based on redundancy but lacked proper notice and was discriminatory in nature.
- Claims for refund of Welfare Contributions and Public Holidays worked were dismissed for lack of evidence. The Claimant was also disqualified from claiming service pay under Section 35(6) of the Employment Act as she was a member of the NSSF.
- The Claimant was awarded Kshs.121,040, including one month's salary in lieu of notice, accrued leave benefits for two years, and compensation for 6 months for unfair termination. The award for house allowance was limited to 3 years due to the time bar under Section 90 of the Employment Act.
Remedies
- One month salary in lieu of notice (Kshs.8400) was awarded to the Claimant as per her prayer.
- Service pay claim was dismissed because the Claimant was a member of NSSF (Section 35(6) of the Employment Act).
- The claim for payment of public holidays worked was dismissed for lack of evidence.
- Compensation for unjust termination of Kshs.52,800 (6 months) was awarded.
- The Claimant received accrued leave for 2 years (Kshs.12,320) as prayed.
- The claim for refund of Welfare Contribution was dismissed due to lack of evidence.
- House allowance for 3 years at 15% of basic salary (Kshs.8800) was granted, totaling Kshs.47,520.
Monetary Damages
121040.00
Legal Principles
The court applied the definition of redundancy under Section 2 of the Employment Act, which requires termination to occur when an employee's services are superfluous. It further held that redundancy must comply with Section 40's procedural requirements, including providing at least one month's written notice to the employee and the labour office. Failure to adhere to these procedures renders the termination unfair and unlawful.
Cited Statute
Employment Act
Judge Name
O. N Makau
Passage Text
- 7. The undisputed evidence by the Claimant is that her employment was terminated by the Respondent after the contract between the Respondent and Pali house expired. That the only other place where Cw1 could work was night shift at Kahamas hotel at Shanzu but the Respondent disqualified her from working there on gender basis and also because she lacked academic qualifications.
- 1. The Claimant has brought this suit claim kshs.311,941.00 being terminal dues plus compensation for unfair termination of his employment by the Respondent on 31.9.2014. It is the Claimant's case that he was unlawfully and unfairly laid off after the Respondent engaged a contractor to outsource labour.
- 9. The said redundancy was obviously unlawfully because it was not done according to the procedure provided for under Section 40 of the E.A. The said provision, among other things, requires that before any termination of employment through redundancy, an employer must serve at least one month notice in writing to the employee and the labour office. In this case no such notice was served and that default alone rendered the redundancy unfair and wrongful.