Kenyans who lost their jobs during the COVID-19 pandemic could get an entitlement to compensation if their employers did not follow the law when declaring them redundant, the court rules.
A court ruling has highlighted an important distinction when a business has a genuine reason to cut jobs, since it still has to follow the required procedures before terminating employees.
The Employment and Labour Relations Court made the findings in a case involving two workers who lost their jobs in 2020 after their employer cited reduced workload and operational difficulties caused by the pandemic.
In the court, the employer argued that the pandemic had affected its operations and reduced the amount of workload, and the court accepted that the reduced workload was a valid operational reason.
An image of a terminated contract
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Canva
However, the court found that the employer had failed to comply with mandatory redundancy procedures, where the workers were issued with a termination letter shortly before their employment ended, with the union notified after the terminations were done, and the court found no evidence that required notice had been issued to the labour officer.
Under Section 40 of Kenya’s Employment Act, employers must meet these conditions before declaring an employee redundant; it includes giving required advance notice to the employee or their union, as applicable, and the Labour Officer, and paying outstanding leave.
Additionally, they must provide at least one month’s notice or salary in lieu as well as statutory severance, moreover they are needed to consider seniority, skills, ability, and reliability when selecting employees for redundancy.
In the ruling, the employer was ordered to pay each worker severance pay and compensation equivalent to six months’ salary, issue certificates of service within 14 days, and meet the costs of the case.
According to the ruling, employees have grounds to challenge a termination where the employer failed to give the required notices, did not pay statutory dues, or otherwise failed to comply with the law.
Redundancy compensation is different from ordinary notice pay; under the Employment Act, eligible workers declared redundant are entitled to severance pay of at least 15 days’ pay for each completed year of service, alongside applicable dues.
However, there is a critical deadline for anyone considering legal action: section 90 of the Employment Act generally requires employment claims to be filed within three years of the act or omission being challenged, while claims involving continuing injury or damage are subject to a separate 12-month period after that injury or damage ends.
Workers who are assessing a redundancy should also have relevant documents, including their employment contract, termination or redundancy letter, payslips, leave records, correspondence about the layoff, and evidence of any payments made.
Kenyan youth queuing on Wabera Street in Nairobi, waiting for services on May 26, 2018.
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Kenyan magazine