Question

I’m Ashley, a Senior Marketing Manager at XYZ Company. I’ve worked here for 15 years and have been voted Employee of the Year for the last five years in a row. Recently, the company announced that my role in the marketing department might be declared redundant. This is due to downsizing caused by high operational costs. What should I expect going forward with regards to the redundancy exercise?

Introduction

Redundancy is recognized as a valid mode of termination of employment under the Kenyan labor laws. It refers to loss of employment through no fault of an employee and at the initiative of an employer where the services of an employee are found to be superfluous. The law provides that redundancy must be both procedurally and substantially fair, that is, an employer must follow the procedure set out under the law and that the grounds for declaring redundancy must be fair and valid. The procedure for termination on account of redundancy. The law stipulates mandatory conditions that your employer should comply with if it contemplates terminating your contract on account of redundancy. The conditions are as listed below:

1. If you are a member of a trade union, the company should notify your union and the labour officer in charge of the area where you are employed of the reasons for, and the extent of, the intended redundancy not less than a month prior to the date of the intended date of termination on account of redundancy.

2. If you are not enrolled in any trade union, the company should notify you and the labour officer personally in writing.

3. Prior to selecting you for redundancy, the company is required to consider the length of time you have served with the company, your skills, abilities and your reliability as an employee. Ideally, in a class of employees who are likely to be affected by the redundancy, XYZ is required to select employees whose skill, ability, reliability and length of time with the company rank lowest.

4. In case there is in existence a collective agreement between the company and a trade union setting out terminal benefits payable upon redundancy, you should be paid any additional sums that are in the CBA. If you are not a member of the union that negotiated the CBA, the company is required to give you equal treatment like your colleagues who are members of the union.

5. In case you have pending leave days, they must be paid off in cash.

6. You are entitled to receive at least one month’s notice or payment equivalent to one month’s salary as an alternative to notice.

7. Lastly, the company should pay you severance pay at the rate of not less than fifteen days’ pay for each completed year of service. It is worth noting that the Kenyan labour laws recognize the following as valid grounds of termination on account of redundancy; abolition of office, organizational restructuring, technological advancement, among others. In case the above procedure is not followed, you may file an employment dispute at the Employment and Labour Relations Court and seek damages for unlawful and unfair termination, among other reliefs.

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