Rop v Unilever Kenya Limited (Cause 1568 of 2017) [2023] KEELRC 1342 (KLR)
The bottom line
#Kenya's Employment Court found a 'redundancy' was a cover for firing a sick employee, awarding her millions in compensation and damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a genuine redundancy situation.
- 2.If the answer to (a) above is in the affirmative, whether the termination of the Claimant's employment was fair and lawful.
- 3.Whether the Claimant is entitled to the reliefs sought or any of them.
- 4.Who should bear the costs of this suit?
Key legal issues
#Whether there was a genuine redundancy situation
No - the alleged redundancy was a sham. The Respondent produced no documentary evidence of the evaluation, deliberations or decision on the restructuring, its witness was not involved in the decision, and the role said to have been abolished was taken over by Felix Maingi with no job descriptions produced to show the roles differed.
The court held that when redundancy is disputed, the employer must present evidence of when the idea to restructure was conceived, the reasons, dates of deliberations, and the decision. The Respondent was 'too casual or general', produced no records of management deliberations, and its witness could not explain how the Claimant was selected. The court drew an adverse inference and preferred the Claimant's account that the termination was dressed up as redundancy.
Whether the termination was procedurally fair under section 40 of the Employment Act
No - no redundancy notice was issued and served; the only letter was a termination letter, and there was no consultation prior to the termination.
Section 40(1) requires a general notice of intention to the employee and Labour Officer, which elicits consultation, before a termination notice. The letter of 1st November 2016 'heavily sounds a termination letter' and was the only correspondence. No prior notice or consultation preceded it, and the Claimant's evidence that there were no consultations was unrebutted.
Whether the termination was discriminatory on account of the Claimant's ill health
Yes - the real reason for the termination was the Claimant's ill health, which is a prohibited ground of discrimination, rendering the termination automatically unfair; the Respondent failed to discharge its burden under section 5 of the Employment Act and section 47(5).
The court found the Respondent's case of redundancy unconvincing, leaving the Claimant's assertion of health-based termination unchallenged. The witness was found not candid, having misleadingly testified that the 23rd October 2014 letter declining voluntary separation flowed from a request for retirement on medical grounds. Termination on ill health falls within the definitions of discrimination under the Constitution, the Employment Act and ILO Convention 111.
Whether the Claimant is entitled to the reliefs sought
Partly - the court awarded a declaration, 11 months' gross salary as compensation (Kshs. 2,058,296.13), and general damages of Kshs. 800,000 for discrimination, with interest and costs.
Compensation under section 49(1)(c) is discretionary up to 12 months. The court considered that the redundancy was a sham, the termination discriminatory, the deviation from legal requirements, the breach of fair labour practices, and that termination was without fault on the Claimant's part. The Respondent's plea for mitigation based on sick-leave payments and severance was rejected as those were not favours to the Claimant.
Legal principles established
#- Redundancy is a no-fault termination and the employer bears the onus of proving a genuine redundancy situation and a fair, valid reason.
- It is not enough for an employer to merely assert restructuring; where redundancy is disputed, the employer must produce reasonable details and documentary evidence of the decision-making process.
- Section 40(1) of the Employment Act contemplates two notices - a general notice of intention to declare redundancy eliciting consultation, and a subsequent notice of the decision - and a mere termination letter does not satisfy this.
- Termination of an employee on account of ill health amounts to discrimination on a prohibited ground and is automatically unfair; the employer bears the burden of disproving discrimination.
- Where an employer starves the court of material for comparison of retained and selected employees, an adverse inference is drawn.
Court orders
#- 1.A declaration that the termination of the Claimant's employment was illegal, unfair and wrongful.
- 2.Compensation pursuant to section 49(1)(c) of the Employment Act, 11 months' gross salary, Kshs. 2,058,296.13.
- 3.General damages for unfair discrimination of Kshs. 800,000.
- 4.Interest on the sums awarded at court rates from the date of judgment till full payment.
- 5.Costs of the suit to the Claimant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment Act 2007 (first-instance Memorandum of Claim; no constitutional or appellate provision invoked)
Relief refused
#12 months' salary (maximum compensation of Kshs. 2,245,413.96) as sought
The court exercised its discretion under section 49(1)(c) and awarded 11 months' gross salary instead of the maximum 12 months.
Costs
Costs of this suit awarded to the Claimant.
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 employer (read Respondent) is burdened with the onus of satisfying the court that there was a genuine redundancy situation, and therefore a fair and valid reason to terminate the employee's(claimant's) employment.
Restructuring and declaration of redundancy is a process it is not a thing that just happens.
By reason of the premises foregoing, I am persuaded by the Claimant that the redundancy alleged by the Respondent was a sham. There was no genuine redundancy situation.
The letter that was served on the Claimant heavily sounds a termination letter. It cannot be seen in any other way. There was no redundancy notice therefore issued and served.
By reason of the premises, this Court comes to a conclusion that the termination of the Claimant's employment was discriminatory and automatically unfair.
In the upshot, judgment is hereby entered in favour of the Claimant in the following terms;
Issues in the judgment
#Parties' names, cause number and station are not stated anywhere in the judgment as provided.
The judgment contains inconsistent statements about when the Respondent's global evaluation occurred - one passage refers to 2016, another to 2010.
The disposition misprints the compensation figure as 'Kshs. 2,2,058,296.13' while the body awards Kshs. 2,058,296.13.
The judgment inconsistently states the number of positions affected by the redundancy - five in the letter to the Labour Officer, four in the witness's evidence.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rop v Unilever Kenya Limited (Cause 1568 of 2017) [2023] KEELRC 1342 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1342/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.