I work for a company which is currently downsizing. My colleagues who are younger are not affected, but all the old employees are. Is this lawful? Otieno.
Otieno, your question falls under the issue of redundancy in Kenya.
Redundancy in Kenya according to Section 2 of the Employment Act, 2007 means the loss of employment , occupation, job or career by involuntary means through no fault on the part of the employee, involving termination of employment at the initiative of the employer, where the service of an employee are no longer required by the employer.
In your case, you will lose your job or become redundant in Kenya through no fault of your own. Whereas your employer has the right to declare some of you redundant, he nevertheless has to comply with the seven (7) conditions provided in section 40 (1) of the Act.
The section sets out what employer needs to comply with before terminating a contract on account of redundancy. These conditions were illustrated by the court in the case of Mary Mutanu Mwendwa v Ayuda Ninos De Africa- Kenya (Anidan K) [2013] eKLR as follows;
- The employer must write a notice to the union and labour office where an employee is a member of a union.
- The employer must give a written notice to the employee and labour officer where the employee is not a member of a union.
- The selection must be on the basis of seniority, skills, ability and reliability.
- The employer must not place non-union employees at a disadvantage in terms of terminal benefits.
- Where an employee is declared redundancy and his leave is due, the said leave must be paid off in cash.
- Payment of not less than one month wages in lieu of notice
- Payment of severance pay at the rate of not less than fifteen days for each completed year of service.
For you Otieno, you need to zero in on condition three (3) listed herein above. The most preferred criteria of selecting the affected class in redundancy or downsizing companies is the objective criteria. Redundancy is not a one day process as it must be participatory, consultative and informative. This involves working with the Labour officer to establish the selection of to be affected.
Failure to observe procedural fairness will among to unfair dismissal. In the case of Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Limited [2013] eKLR, the court made it very clear that the procedure to follow is at Section 40 of the Act and where it is not followed, any termination as a result will be deemed unprocedural and unfair. The court went further to state that any termination of an employee based on redundancy must be based on the law otherwise the same becomes wrong and if the grounds used to identify the affected employees are not as per the law the same becomes unfair.
So Otieno, if you wish to discuss your claim further, click here and I will get in touch with you.