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ELRCPartially AllowedCause 442 of 2012· [2012] KEELRC 107 (KLR)

DICKSON CHAHENZA ADEYA V TOTAL SECURITY SURVEILLANCE LTD [2012] KEELRC 107 (KLR)

Industrial Court of Kenya
17 December 2012
1,340 words in judgment
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The bottom line

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A Kenyan security firm fired an employee on probation grounds after his probation had expired, without a hearing, and paid him 12 months' salary.

What this practically means

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Executive summary

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The claimant, Dickson Chahenza Adeya, sued Total Security Surveillance Ltd alleging unlawful and wrongful termination of his employment as Human Resource and Administrative Manager, a post he took up on 22nd November 2010 on a two-year contract at a consolidated monthly pay of Ksh.45,000/=. He was dismissed on 13th August 2011 on grounds of poor performance, the respondent contending he was still on probation and thus entitled only to 15 days' notice. The respondent further alleged substandard performance and poor relations with other workers. The court framed two issues: whether the dismissal was justified, and what remedies flowed if not. It found that the claimant's initial three-month probation had been extended by three months to 3rd July 2011, and since he was not terminated on that date and had by dismissal worked eight months, been enrolled in the medical scheme, and paid one month's salary in lieu of notice, he was in substance a permanent employee. No performance appraisal report was produced, and the claimant was given no hearing before termination, contrary to Section 41(1) of the Employment Act 2007 and ILO Recommendation 119. The dismissal was held unfair and wrongful. The court awarded 12 months' salary (Ksh.540,000/=), a certificate of service, and costs to the claimant, out of a total claim of Ksh.6,294,250/=. Judgment was delivered at Nairobi on 17th December 2012 by Hellen Wasilwa, Judge.

Key legal issues

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01

Whether the dismissal of the claimant was justified

Holding

The dismissal was unfair and wrongful. The claimant's probation had expired by the time of termination, making him a permanent employee, and he was terminated on grounds of poor performance without a performance appraisal report and without being given a hearing.

Reasoning

The claimant was employed on 22nd November 2010 on a 3-month probation, later extended by 3 months to 3rd July 2011. By the dismissal on 13th August 2011 he had worked 8 months and had been admitted to the employees' medical scheme, and was paid one month's salary in lieu of notice like permanent employees. No performance appraisal report was produced, and no hearing was afforded, contrary to Section 41(1) of the Employment Act 2007 and ILO Recommendation 119.

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02

What remedies the claimant is entitled to

Holding

Having found the termination unfair and wrongful, the court awarded 12 months' salary as compensation, a certificate of service, and costs of the suit.

Reasoning

The court exercised its discretion to award the equivalent of 12 months' salary (Ksh.540,000/= at Ksh.45,000/= per month) for the wrongful termination, together with a certificate of service and costs to the claimant. The remaining heads of the claim totalling Ksh.6,294,250/= were not granted.

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Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, poor performance or physical incapacity, explain the reasons to the employee and afford the employee a hearing as required by Section 41(1) of the Employment Act 2007.
  • An employee whose probation has expired without termination becomes a permanent employee and cannot be dismissed as one on probation.

Court orders

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  1. 1.Payment of 12 months' salary for wrongful termination, equivalent to Ksh.540,000/=.
  2. 2.Claimant to be issued with a certificate of service.
  3. 3.Respondent to pay costs of the suit.
Jurisdiction invoked
Industrial Court of Kenya, Cause 442 of 2012 (employment dispute under the Employment Act 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "DICKSON CHAHENZA ADEYA V TOTAL SECURITY SURVEILLANCE LTD [2012] KEELRC 107 (KLR)", Case Analysis (2012). Cause 442 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/107/eng@2012-12-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.