Automated Summary
Key Facts
104 employees (David Mutevu et al.) claimed unfair redundancy by Africa Nazarene University in 2011. The university restructured non-core departments (transport, cleaning, security, catering) through outsourcing, paid terminal dues including one month's notice and 15 days basic pay per year of service, but failed to provide statutory redundancy notices. The court ruled the process unfair due to procedural lapses and awarded 3 months' salary per claimant instead of the requested 12 months. The Labour Officer had previously recommended 12 months' compensation, but the university contested this. Key departments affected included transport, security, and catering, with some claimants later employed by outsourced companies.
Issues
- The court evaluated the compensation claim of 12 months' salary, ultimately awarding 3 months' salary each due to the employer’s procedural lapses in redundancy notices. The claimants argued for 12 months’ compensation based on Labour Officer recommendations, but the court balanced this against the respondent’s partial compliance with statutory obligations.
- The court assessed the fairness of the redundancy process, considering if the employer adequately consulted employees and followed legal procedures. The respondent’s failure to provide mandated notices and the abrupt termination caused distress to employees, leading to a declaration of unfair redundancy despite some procedural efforts like meetings and payments.
- The court determined if the employer followed the mandatory notice requirements under section 40 of the Employment Act, including timely communication to the Labour Officer and employees before termination. The respondent failed to issue the required initial notice to alert employees of impending redundancy, leading to a finding of non-compliance.
Holdings
- A declaration that the 1st to the 104th (excluding claimants 11, 50, and 96) claimants redundancy process was unfair.
- Each claimant (excluding 11, 50, 96) is awarded 3 months' salary as compensation based on their last salary earned.
- The claims with regard to claimant 11 and 50 are hereby dismissed with costs to the respondent.
- The 96th claimant claim is hereby struck out with costs to the respondent.
Remedies
- Each of the remaining claimants (1st to 104th, excluding 11th, 50th, and 96th) is awarded 3 months' salary as compensation for unfair redundancy, based on their last earned salary.
- The claim of David Migan (claimant No. 96) is struck out with costs to the respondent as he was never an employee of Africa Nazarene University.
- The court declares the redundancy process for the 1st to 104th claimants (excluding those dismissed in (a) and (b)) as unfair, citing failure to follow mandatory notice procedures under the Employment Act.
- The claims of claimant No. 11 (Ephaphrus Njue) and claimant No. 50 (Lucy Karimi) are dismissed with costs to the respondent due to termination for gross misconduct unrelated to redundancy.
Legal Principles
The court emphasized that redundancy procedures under section 40 of the Employment Act are mandatory, requiring employers to issue notices to employees and the Labour Officer prior to termination. Failure to comply with these procedural requirements constitutes an unfair labour practice. The judgment clarified that the first notice under section 40(1)(b) alerts employees to potential redundancy, while the second notice under section 40(1)(f) formally terminates employment, with the employer obligated to provide one month's notice or pay in lieu.
Precedent Name
- Solomon M. Kinzi versus Kukoposha Limited
- David Opondo versus De La Rue (Kenya) Limited
- Agnes Wamae & 104 others versus Barclays Bank of Kenya
- Elizabeth Washeke versus Airtel Networks (K) Ltd & Another
- Aviation and Allied Workers Union versus Kenya Airways Ltd & 3 Others
- Jane Khalechi versus Oxford University Press E.A. Ltd
Cited Statute
- Employment Act, Sections 40, 41, 43, 45, 49
- Industrial Court Act, Section 3
Judge Name
M. Mbaru
Passage Text
- It is therefore the finding of this court that the claimants were unfairly declared redundant.
- Each claimant as (c) above is hereby awarded 3 months' salary as compensation. This will be based on the last salary earned by each of the claimants.
- I have perused the entire record from the respondent bundle of documents and do not find such notice. The respondent was equally insistent that the notices envisaged under section 40 was the one they issued.