An employee of Tamarind Tree Hotel who was terminated on account of frustrations arising from the Covid-19 situation has been awarded Sh750,000 by a labour Court.
Employment and Labour Relations Judge Byrum Ongaya said although the reason for Mathew Kalume’s termination was valid as at the time, the procedure was unfair.
“The reason for termination being frustration on account of Covid-19 situation, the Court finds that the same was not attributable to the claimant as it amounted to redundancy as per the definition in section 2 of the Employment Act, 2007,” the Judge said.
Ongaya said the Tamarind Group was bound to comply with section 40 of the Employment Act, 2007 and it has not been shown that such compliance was impossible (equally frustrated) as urged.
The said section states that an employee shall not terminate a contract of service on account of redundancy unless the employer notifies the employee personally in writing and the labour officer.
The Judge observed that the notice to the area labour officer and the claimant on the extent and reasons for redundancy was never served at all.
“The claimant legitimately expected to continue in employment or to be removed in accordance with the contractual and lawful procedure. He had three years of clean record of service," the judge noted.
"He had been considerate in understanding the difficult times and conceding to pay cuts on two occasions."
Kalume was employed on June 16, 2017, as an accountant. Two years later, he was promoted to the position of unit accountant at Tamarind Tree Hotel.
The court record indicates Tamarind Group shut down its hotel on March 25, 2020, in line with the Presidential directives issued to combat the spread of Covid-19 disease which was declared a global pandemic.
Kalume continued to work from home as directed by his employer.
At the end of April 2020, the Hotel unilaterally reviewed his basic salary from Sh100,000 to Sh60, 000 through a letter alleged to be dated March 24, 2020, and, a further reduction of the basic salary to Sh48, 000 through a letter dated April 20, 2020.
He told the court he was threatened to sign the two letters reducing his salary or miss any salary at all.
He argued that the salary reduction was contrary to the Employment Act, of 2007 as it was essentially his employer's unilateral decision.
Court papers show that a month later he was summoned to a meeting at the Carnivore Restaurant in Nairobi where he was handed a purported termination letter. The explanation was that the Tamarind Group would cease operations indefinitely because of the adverse challenges brought about by the Covid-19 disease and the government directives issued to combat the spread.
He, however, told the court he was shocked when he saw an advertisement that the respondent was reopening Tamarind Tree Hotel on June 6, 2020, a day after his contract of service had been deemed terminated.
But the Judge in his findings said Kalume freely signed for the salary reduction and It is not for the Court to rewrite the parties’ contracts freely entered into.
The Judge further dismissed claims by Kalume that the business reopened three days after he was terminated saying no evidence was provided to show that the reopening revived the position he held as tenable.
On account of the procedure for termination being unfair, the Judge awarded Kalume 8 months’ compensation—Sh48, 000 x 12 = Sh576, 000.
The Court also awarded him Sh96, 000 being the unpaid two months’ salaries bringing the total award to Sh744, 000(less PAYE)
