Kungu George Kairu & 35 others v K k Security Limited [2015] KEELRC 4 (KLR)
The bottom line
#A Kenyan court stopped a company from laying off 36 security guards because it skipped the legally required redundancy notice to their union.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claim and application filed on 29th July 2015 are fatally defective
- 2.Whether the orders sought should issue
Key legal issues
#Whether the claim was fatally defective for lack of authority of co-claimants
The claim was properly filed by the 1st listed claimant under section 22 of the ELRC Act and Rules 9 and 23 of the Court Rules.
Section 22 of the ELRC Act allows parties to appear in person, through advocates, or through trade unions. Rule 9 permits one employee to file a claim on behalf of others against one employer where the cause of action is common, subject to a schedule of names. Where claimants settle individually during the suit, that is encouraged and to be taken into account. Requiring prior leave would be an impermissible technicality contrary to Article 159.
Whether preservatory orders should issue against the redundancy terminations
An interim restraint was granted because the Claimants raised that the mandatory section 40 procedure (notice to the union and labour officer) was not followed, establishing a prima facie case to be tested at full hearing.
Applying Giella v Cassman Brown, the Court found a prima facie case where the Respondent, admittedly dealing with unionised employees, issued termination letters without the section 40 notification to the union. Issues of justification and selection criteria are matters of merit reserved for the full hearing. The balance of convenience favoured preserving the employment pending trial.
Whether disciplinary and attendance considerations can inform redundancy selection
No. Such matters are governed by sections 35, 41, 43 and 44 of the Employment Act and cannot form part of section 40 redundancy considerations.
The Respondent's HR Manager averred that a long-serving employee with poor attendance or disciplinary record cannot have an advantage. The Court held this would lose the essence of redundancy and would allow employers to use redundancy as an easier, due-process-free route to address misconduct. Any participation in prohibited industrial action must be addressed separately.
Whether the claim was brought by the union or by the individual employees
The suit was filed by the Claimants in person, not as grievants under their union, and must be treated separately from other suits between the Respondent and the union.
The Respondent's affidavit confusingly referred to CBAs and disputes with the union, which the Court found contradictory as to the entity sued. The Court clarified that even where claimants are unionised and the union has recognition, this claim was by the individual employees and any union suits are distinct.
Legal principles established
#- Where an employer has reason to believe an employee is a union member, notice of intended redundancy must issue to the union and the local labour officer at least one month before the effective date under section 40 of the Employment Act.
- Once a claimant demonstrates that a fundamental statutory procedure was not followed in termination, a prima facie case is established and merits are canvassed at full hearing.
- Poor attendance or disciplinary record cannot be considerations in a redundancy selection under section 40 of the Employment Act.
- One employee may sue on behalf of several employees with a common cause of action against one employer under Rule 9 of the ELRC Rules, subject to attaching a schedule of claimants.
- Technical requirements that impede access to justice should not defeat claims before the ELRC, consistent with Article 159 of the Constitution.
Court orders
#- 1.The Respondent is restrained from terminating the employment of the Claimants pending the hearing of the main suit
- 2.The 24 Claimants who accepted redundancy dues are to file notices of withdrawal of their individual claims or file affidavits indicating their wish to settle the matter
- 3.Upon such withdrawal/settlement, the Memorandum of Claim shall be amended as appropriate before taking hearing dates
- 4.Costs shall be in the motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 22
Relief refused
#Prohibition of the Respondent from declaring the Claimants redundant and relieving them from itself (as framed beyond the restraint granted)
Court granted only a restraint pending hearing of the main suit; merits reserved for full hearing
Application as against the 24 Claimants who accepted redundancy dues
Those Claimants are to withdraw or settle their individual claims
Costs
Costs shall be in the motion.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the Respondent is hereby restrained from terminating the employment of the Claimants herein pending the hearing of the main suit herein
Noting the letters filed from 24 Claimants as set out in the affidavit of Mr Ayieko-Otieno, filed on 26th August 2015, these Claimants are to file their notices of withdrawal of their individual claims or file affidavits indicating their wish to settle the matter or act as appropriate.
Upon such move by the 24 noted claimants, the Memorandum of Claim shall be amend as appropriate and before taking hearing dates.
Costs shall be in the motion.
Matters of poor work attendance or disciplinary record are not for a redundancy consideration.
to require such a party first apply and seek leave of the Court to approach and file required application is a technicality that does not promote the provisions of article 159 of the constitution
Positions and not employees, become redundant. When the position becomes redundant, the employee can be re-deployed, which means the employee is given another job, or the employee is retrenched, meaning the employee loses the job altogether.
Issues in the judgment
#Citation of AAWU v Kenya Airways appears with inconsistent cause numbers within the judgment
The Respondent's deponent's name is inconsistently rendered in the judgment
The judgment refers to contradictory averments at paragraphs not clearly reproduced, fragmenting the text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kungu George Kairu & 35 others v K k Security Limited [2015] KEELRC 4 (KLR)", Case Analysis (2015). Cause (Notice of Motion filed 29/7/15). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/4/eng@2015-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.