Gachanja v Unifresh Exotics (K) Limited (Cause 278 of 2019) [2024] KEELRC 1914 (KLR)
The bottom line
#An employer who offers genuine alternative employment before a redundancy escapes compensation claims, but must still pay earned leave and salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination on account of redundancy was unlawful
Not unlawful - the employer offered alternative employment which the Claimant declined; notice and consultation requirements were effectively satisfied
The employer communicated financial difficulties and offered the Claimant alternative employment at Hotel Greenwood on the same terms. The Claimant declined via text message and indicated she would resign. The court applied the consultation principle in Kenya Airways v Aviation & Allied Workers Union but found that having offered alternative employment, the employer had met the purpose of the statutory notice, and the Claimant could not, in good faith, claim compensation for the redundancy.
Entitlement to leave pay and salary for days worked in March 2019
Claimant entitled to prorata leave; claim for 7 leave days confirmed and salary for 10 days in March 2019 awarded
The Respondent's argument that the Claimant, having not worked a full year, was not entitled to leave, contravenes the law which provides for prorata leave. At the very least the Claimant was entitled to 19 leave days; leave forms showed 12 days taken, leaving 7 days. The Claimant was also entitled to salary for 10 days worked in March 2019.
Whether the Respondent's counterclaim was made out
Counterclaim dismissed in its entirety
The counterclaim was founded on the allegation that the Claimant was not entitled to annual leave and resigned without notice. The court had already found she was entitled to prorata leave, and the Respondent's own letter showed the termination was initiated by the Respondent following her refusal of an alternative position, so no notice-pay claim could lie against her.
Legal principles established
#- The law on redundancy requires the employer not only to issue proper notice but also to consult the employee with a view to averting redundancy, for example by finding alternative employment.
Court orders
#- 1.Judgment entered in favour of the Claimant for leave pay of 7 days (Kshs.19,833) and salary for 10 days in March 2019 (Kshs.28,333), total Kshs.47,666
- 2.The amount to attract interest at court rates from the date of judgment until payment in full
- 3.The Respondent directed to issue the Claimant with a certificate of service
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance Memorandum of Claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gachanja v Unifresh Exotics (K) Limited (Cause 278 of 2019) [2024] KEELRC 1914 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1914/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.