Noel George Khaaba v Wanandege Housing Co-Op Society Limited [2013] KEELRC 40 (KLR)
The bottom line
#A Kenyan court upheld dismissal of a probationary employee for poor performance but ordered the employer to issue a certificate of service.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was unfair, wrongful and unlawful
The termination was not unfair; the employer proved a valid reason (non-performance during probation) and complied with Section 45 of the Employment Act, 2007.
The claimant was employed on probation and failed to perform, exhibiting lapses noticed within a month of appointment. He did not rebut the respondent's case of incapacity to perform. Applying Section 45(2) and 45(5) of the Employment Act, the court found the reason valid and related to the employee's capability, and the dismissal congruent with the statute's requirements. The claimant had also been paid one month's salary in lieu of notice.
Whether the claimant is entitled to the relief sought
The claimant is disentitled to all relief except a certificate of service, which is mandatory in law.
Having found no unfair dismissal, the heads of relief (notice pay, medical bills, general relief for unfair dismissal) fell away. However, the statutory entitlement to a certificate of service under the Employment Act survives and was ordered. Costs were left to each party.
Legal principles established
#- An employer who proves a valid reason related to the employee's capability and acts in accordance with Section 45 of the Employment Act has not unfairly terminated employment.
- Issuance of a certificate of service is mandatory in law notwithstanding dismissal of the claim.
Court orders
#- 1.The claim is dismissed.
- 2.The claimant be issued with a certificate of service.
- 3.Each party bears its own costs.
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment and labour relations disputes (Employment Act, 2007 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Noel George Khaaba v Wanandege Housing Co-Op Society Limited [2013] KEELRC 40 (KLR)", Case Analysis (2013). Cause No. 1809 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/40/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.