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ELRCPartially AllowedCause Number 1979 of 2012· [2013] KEELRC 129 (KLR)

Carole Nyambura Thiga v Oxfam (Cause 1979 of 2012) (Civ) [2013] KEELRC 129 (KLR)

Industrial Court of Kenya (Industrial Court at Nairobi)
27 September 2013
JRJames Rika
3,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Oxfam couldn't label a long-serving employee as 'probationer' to avoid unfair termination law, though it won on having a valid reason—paying her unexpired contract instead.

What this practically means

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Executive summary

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The Claimant, Carole Nyambura Thiga, was employed by Oxfam as Regional Campaigns Manager under a written contract dated 3rd September 2010 for six months, renewed by a further three-month contract commencing 25th March 2011 with a four-week probationary clause. Oxfam terminated the contract on 1st April 2011 without stating a reason in the termination letter, later explaining the decision by donor reassignment of project funds. She claimed unpaid April 2011 salary, salaries for the unexpired contract, and damages for unlawful termination. Oxfam defended the termination as a fair probationary termination and counterclaimed Kshs. 309,859.67 in medical bills allegedly exceeding her cover. The Court held that subjecting a long-serving employee continuing in the same role to probation under a renewed contract was a strange policy amounting to an unfair labour practice, and rejected the probation defence. It found Oxfam had a valid reason for termination - financial constraints - so damages for unfair termination were refused, but held economic termination falls in the domain of redundancy, engaging the contractual clause entitling fixed-term employees to be paid to the end of the contract. The Court awarded one month's salary in lieu of notice (Kshs. 230,000) and Kshs. 672,307 for the unexpired contract period. On the Counterclaim, the Court found the Claimant liable for her excess maternity bill but at the reduced, NHIF-netted figure of Kshs. 249,159. After offset, Oxfam was ordered to pay the Claimant Kshs. 653,148 within 30 days, with no order on costs and interest.

Key legal issues

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01

Whether the Claimant was on valid probation at termination

Holding

The Court rejected the probation defence; a perpetual probation policy for a long-serving employee doing the same work is an unfair labour practice

Reasoning

The Claimant had worked for Oxfam since 2008, was discharging the same role in continuity with only a 23-day break between contracts, needed no induction, and had no new duties. Probation is meant for new employees to allow job adjustment. Applying Oxfam's policy of probation on every renewed contract would indefinitely deny employees unfair termination remedies.

p. 4
02

Whether termination was for a valid reason

Holding

Yes - financial constraints following donor reassignment of funds constituted a valid reason

Reasoning

The termination letter gave no reason, but evidence showed a prior meeting where lack of funding was explained. Oxfam is donor-dependent, funds for the project were reassigned, and the Claimant did not protest at the time or lead evidence of sufficient funds. Economic termination, however, falls in the domain of redundancy, triggering the contractual pay-to-end clause.

p. 4
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Whether the Claimant was entitled to the unexpired contractual period

Holding

Yes - under the contractual redundancy clause, the alternative to working to the end of the contract was to be paid to the end

Reasoning

The contract was terminated 2 months and 24 days before the agreed end date of 24 June 2011. Since the reason was economic, the redundancy clause should govern exit terms, entitling the Claimant to Kshs. 460,000 for the full two months plus Kshs. 212,307 for the 24 days, plus one month salary in lieu of notice as a confirmed employee.

p. 5
04

Whether the Claimant is indebted on the Counterclaim

Holding

Yes, but in the reduced sum of Kshs. 249,159.67, being the figure net of NHIF deductions

Reasoning

The Court found the Claimant's maternity bill was met by the Respondent's healthcare scheme and she exceeded her limit, but the Respondent was inconsistent on the amount owed: Kshs. 309,859.67 in clearance forms and the Counterclaim, versus Kshs. 249,159.67 in the reply to the demand letter. The lower figure, net of NHIF, was the correct sum.

p. 5

Legal principles established

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  • Subjecting a long-serving employee who continues in the same role to a fresh probationary period under a renewed contract is an unfair labour practice under Kenyan labour law and does not disentitle the employee from unfair termination remedies
  • Employees on valid probation are not entitled to the procedural guarantees under Section 41 of the Employment Act 2007
  • Termination occasioned by economic reasons is properly in the domain of redundancy, and fixed-term contracts with a pay-to-end clause should be settled according to that clause

Court orders

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  1. 1.Declaration that termination of the Claimant's contract of employment was fair
  2. 2.The Respondent shall pay the Claimant 1 month salary in lieu of notice at Kshs. 230,000 and salaries for the 2 months and 24 days left in the contract at Kshs. 672,307, total Kshs. 902,307
  3. 3.The Counterclaim succeeds in the sum of Kshs. 249,159
  4. 4.Upon offset, the Respondent shall pay the Claimant the sum of Kshs. 653,148 within 30 days of delivery of the Award
  5. 5.No order on the costs and interest

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 42(1)
Jurisdiction invoked
Industrial Court jurisdiction over disputes of unlawful and unfair termination of employment (Employment Act 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "Carole Nyambura Thiga v Oxfam (Cause 1979 of 2012)  (Civ) [2013] KEELRC 129 (KLR)", Case Analysis (2013). Cause Number 1979 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/129/eng@2013-09-27

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