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ELRCPartially AllowedNotice of Motion dated 14th August, 2012 (Industrial Cause)· [2012] KEELRC 233 (KLR)

DINAH MUSINDARWEZO. v AFRICAN WOMEN\'S DEVELOPMENT AND COMMUNICATION NETWORK(FEMNET) [2012] KEELRC 233 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
18 October 2012
JAJo Abuodha
7,201 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped FEMNET from firing its Executive Director because the organisation skipped fair procedure, showing process matters even during probation.

What this practically means

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Executive summary

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The claimant, employed as Executive Director of FEMNET with effect from 1st December, 2011 on a three-year contract subject to six months' probation, moved the court by notice of motion dated 14th August, 2012 seeking an injunction against termination, reinstatement, and declarations that the Chairperson's termination letters were issued un-procedurally, without consultation, in breach of the respondent's policies and natural justice, and that the Chairperson could not unilaterally terminate without Board consensus. The respondent contended the suit was incompetent under section 45(3) of the Employment Act given her short service, that her performance was poor and insubordinate, and that probation was extended by conduct. The court first held that while the unfair termination limb was barred by section 45(3), the claim survived as a complaint of wrongful termination based on process, and endorsed Lenaola J's reasoning doubting the constitutionality of section 45(3). On the affidavit capacity objection, the court found the Resident Trustee lacked authority absent a Board resolution but treated the affidavit as competent since she was personally conversant with the issues. On the merits the court found probation was extended by conduct, confirmation was not automatic upon lapse of the appraisal deadline, but that the appraisal and termination process was non-collegiate, lacked Board consensus, and denied the claimant a fair hearing. A prima facie case having been established, the court confirmed the interim injunction restraining termination pending full hearing, holding that adequacy of damages does not bar an injunction, and permitted the Board to terminate in future only in a collegiate manner with consensus and in accordance with natural justice.

Key legal issues

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01

Competence of an unfair termination claim by an employee with less than thirteen months' service

Holding

The unfair termination limb would be barred by section 45(3), but the claim survives as a complaint of wrongful/unlawful termination challenging the process, so the suit is competently before the court

Reasoning

Section 45(3) confines unfair termination claims to employees with at least thirteen months' continuous service. However the claimant also challenges the legality and process of her termination, i.e. wrongful termination, in respect of which section 45(3) imposes no bar. The court also endorses Lenaola J's dictum doubting the constitutionality of section 45(3) as discriminatory against short-serving employees.

p. 5
02

Capacity of the Resident Trustee to swear the replying affidavit

Holding

Mary Okioma lacked formal capacity absent a Board resolution, but her affidavit remains of consequence because she was personally conversant with the matters in dispute

Reasoning

Article 26(vii) of the respondent's constitution allows the Resident Trustee to take up assigned duties; assignment in practice is by Board resolution or minutes, none of which were exhibited, so capacity was lacking. However the court is enjoined to do substantial justice without undue regard to procedural technicalities, and she was a Board member involved in the recruitment and appraisal of the claimant, hence competent to depone personally.

p. 6
03

Whether continued work after lapse of the appraisal deadline amounted to confirmation of employment

Holding

No; the parties by conduct extended the probation indefinitely pending appraisal, subject to the statutory six-month ceiling, and confirmation was not automatic

Reasoning

It is an accepted principle of contract that parties may vary or extend terms by conduct. The Employment Act does not prescribe the form of the employee's consent to extension, so consent may be inferred from circumstances. Appraisal was an essential step to confirmation, but the omission to appraise on time did not automatically confirm the claimant.

p. 7
04

Whether the appraisal and termination process complied with the constitution, personnel policy and natural justice

Holding

No; the process was non-collegial, lacked Board consensus, and denied the claimant a fair hearing before termination

Reasoning

The appraisal report was released concurrently with the termination letter, giving the claimant no opportunity to respond. The Board was split evenly over confirmation, the Secretary disputed the decision, and the identity of the 'we' in the termination letter was unresolved. Termination that affects livelihood must follow natural justice, including fair hearing, per section 45 of the Employment Act and the dictum of Lord Denning in Abbot v Sullivan.

p. 9
05

Appropriate interlocutory remedy

Holding

A prima facie case with probability of success was established and the interim injunction was confirmed

Reasoning

The flawed, non-consultative process established a prima facie case. The respondent's argument that damages would adequately compensate was rejected as an erroneous reading of injunction principles; an injunction may issue even where damages would suffice if the wrong is eventually proved.

p. 11

Legal principles established

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  • Section 45(3) of the Employment Act does not prevent an employee who has served less than thirteen months from bringing an action for wrongful termination, as distinct from unfair termination
  • Parties to a contract may by their own conduct vary or extend a term of the contract; consent to extend a probationary period may be inferred from conduct since the Employment Act does not specify how such consent should be evinced
  • Omission to carry out an appraisal one month before expiry of probation does not result in automatic confirmation of an employee
  • Under the golden rule of statutory interpretation, the ordinary meaning of statutory words must be adhered to unless it leads to absurdity; an employer must satisfy all the limbs of section 45(2) of the Employment Act to justify a termination
  • A decision affecting an employee's livelihood must be reached after following the rules of natural justice, critically the right to a fair hearing
  • The fact that damages can adequately compensate a party does not preclude the grant of an injunction in appropriate and compelling circumstances
  • Courts should not pay undue regard to procedural technicalities where no prejudice is occasioned; a deponent's lack of Board authorisation does not render her affidavit of no consequence where she is personally conversant with the matters in dispute

Court orders

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  1. 1.Interim injunction confirmed restraining the respondent from terminating the claimant's employment until the hearing and determination of her claim
  2. 2.The claimant's application allowed to the extent of the confirmation of the interim injunction pending full hearing
  3. 3.Leave that if the Executive Board wishes to terminate the claimant's services, it may do so provided it acts in a collegiate manner with a clear consensus of the Board and subject to the rules of natural justice and section 45 of the Employment Act, 2007

Authorities

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Legislation

  • Employment Act, 2007section 45(1), 45(2), 45(3), 45(4)
  • Employment Act, 2007section 42(2)
  • Employment Act (repealed), Cap 226general
  • Constitution of Kenya, 2010Articles 27 and 48
  • FEMNET ConstitutionArticles 24, 25, 26, 30(1), 30(2)
  • FEMNET Personnel Policy, Guidelines, Terms and Conditions of Service (amended October 2010)clause xxi; clause 8

Cases cited (4)

  • Samuel G. Momanyi v The Hon. Attorney General & Another
    High Court, Constitutional and Human Rights Division Petition No. 341 of 2011
  • Cradle v Attorney General
    [2006] eKLR
  • Abbot v. Sullivan
    (1952) 1 KB 189
  • Menginya Salim Murgani v Kenya Revenue Authority
    HCCC No. Civil Case 1139 of 2002, [2008] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 and the labour dispute resolution framework of the Industrial Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "DINAH MUSINDARWEZO. v AFRICAN WOMEN\'S DEVELOPMENT AND COMMUNICATION NETWORK(FEMNET) [2012] KEELRC 233 (KLR)", Case Analysis (2012). Notice of Motion dated 14th August, 2012 (Industrial Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/233/eng@2012-10-18

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