By Jerameel Kevins Owuor Odhiambo
Worth Noting:
- The court’s dissection of the redundancy process is particularly incisive. It highlights the incongruity between the company’s actions – having Siwa clear out his office in January 2018 – and its subsequent attempt to conduct “consultations” in February. This sequence of events is rightly characterized as a “charade” and “cosmetic,” echoing the Court of Appeal’s stance in The German School Society & Another v. Ohany & Another (2023) that redundancy consultations must be genuine, not perfunctory exercises.
- The judgment’s treatment of Clause 18 in Siwa’s employment contract is significant. This clause, which promised alternative employment within the company group in case of restructuring, was seemingly ignored by the employer. The court’s emphasis on this point underscores the importance of adhering to contractual obligations even during corporate restructuring processes.
The case of Joshua Siwa v. Flamingo Horticulture [K] Limited (2024) presents a compelling examination of the interplay between employment law, corporate restructuring, and the principles of fair termination in Kenya. At its core, the case revolves around Sections 40, 41, 43, and 45 of the Employment Act, which collectively govern the process of redundancy and fair termination. These provisions mandate that employers must have valid reasons for termination, follow due process, and conduct genuine consultations with affected employees. The facts of the case reveal a complex narrative involving allegations of racial discrimination, a purported redundancy process, and questionable corporate practices.
The Employment and Labour Relations Court’s decision, penned by Justice Rika, meticulously dissects the events leading to Mr. Siwa’s termination. The court’s analysis begins with Siwa’s employment as Financial Controller in November 2016 and traces the convoluted path to his eventual dismissal in March 2018. Of particular note is the sequence of events following Siwa’s attempted resignation in April 2017, his subsequent sabbatical leave, and the company’s actions upon his return. The court’s keen observation of the “farewell lunch” organized for Siwa before his sabbatical is a pivotal point in unraveling the employer’s true intentions.
The court’s treatment of the discrimination allegations is noteworthy. While acknowledging the gravity of such claims, Justice Rika applied the principle established in cases like David Wanjau Muhoro v. Ol Pejeta Ranching Limited (2014) and Efobi v. Royal Mail Group Limited (2021), which require the claimant to establish prima facie evidence of discrimination before the burden shifts to the employer. The court’s conclusion that Siwa failed to substantiate his claims of racial discrimination demonstrates a rigorous application of legal principles, even in emotionally charged circumstances.
The crux of the judgment lies in its analysis of the purported redundancy process. The court’s skepticism is palpable as it examines the employer’s actions, particularly the appointment of James Nicholson to a position similar to Siwa’s shortly before declaring Siwa’s role redundant. This scrutiny aligns with the principles laid out in Kenya Airways Limited v. Aviation & Allied Workers Union Kenya & 3 Others (2014), which affirms an employer’s right to restructure while emphasizing the need for genuine reasons and fair procedures.
The court’s dissection of the redundancy process is particularly incisive. It highlights the incongruity between the company’s actions – having Siwa clear out his office in January 2018 – and its subsequent attempt to conduct “consultations” in February. This sequence of events is rightly characterized as a “charade” and “cosmetic,” echoing the Court of Appeal’s stance in The German School Society & Another v. Ohany & Another (2023) that redundancy consultations must be genuine, not perfunctory exercises.
The judgment’s treatment of Clause 18 in Siwa’s employment contract is significant. This clause, which promised alternative employment within the company group in case of restructuring, was seemingly ignored by the employer. The court’s emphasis on this point underscores the importance of adhering to contractual obligations even during corporate restructuring processes.
In its analysis of procedural fairness, the court’s criticism of the employer’s actions is scathing. The decision to hold a redundancy consultation meeting after the employee had already cleared out his office is rightly described as “meaningless” and “procedurally redundant.” This assessment aligns with the broader principles of natural justice and fair administrative action, which are cornerstone concepts in Kenyan employment law.
The court’s approach to remedies is measured and thoughtful. While rejecting claims for damages due to insufficient evidence, it awards compensation based on the principles of unfair termination. The calculation of the award, considering factors such as length of service and mitigation of loss, demonstrates a balanced application of statutory provisions and common law principles.
This judgment serves as a stark reminder to employers of the perils of conducting sham redundancy processes. It reinforces the principle that corporate restructuring, while a legitimate business practice, must be conducted transparently and fairly. The court’s detailed examination of the employer’s actions sends a clear message that attempts to circumvent employment law protections through convoluted processes will be met with judicial scrutiny.
In conclusion, this case stands as a significant contribution to Kenyan employment law jurisprudence. It provides a comprehensive framework for analyzing redundancy processes, emphasizing the need for substantive and procedural fairness. The judgment’s meticulous deconstruction of the employer’s actions serves as both a warning to employers and a guide for future cases involving corporate restructuring and employee rights. It reinforces the court’s role as a vigilant guardian of fair employment practices, ready to pierce through the veil of corporate maneuvering to protect the rights of employees.
The writer is a legal researcher and lawyer
