MERCY W. KINYUA V WESTLIFE CONSTRUCTION COMPANY LTD [2013] KEELRC 464 (KLR)
The bottom line
#A Kenyan court ruled that while probationary employees can be dismissed without a hearing, employers must still give notice pay if they deny any chance to respond.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of a probationary employee complied with the Employment Act
Summary dismissal of a probationary employee is excluded from the Section 41 procedural requirements, but the court converted the dismissal to normal termination because the employee was not given a chance to mitigate
Section 44 permits summary dismissal for wilful neglect or careless performance of duty, and the Respondent alleged the Claimant failed to secure a Bid Bond and Manufacturer's Authorisation. However, Section 42(1) excludes probationary contracts from the Section 41 hearing requirements. Despite this, the court exercised discretion to convert the dismissal to normal termination, awarding notice pay, because the Claimant had no opportunity to mitigate her case before dismissal.
Whether the Claimant was entitled to prorata leave and prorata pay
Yes - prorata leave at 1.75 days per completed month and prorata pay for 1st to 20th April 2011
Having worked at least two months before termination, the Claimant accrued leave under Section 28(b) of the Employment Act. She was also awarded unpaid salary for the period worked in April 2011 up to the date of termination.
Legal principles established
#- The provisions of Section 41 of the Employment Act (right to be heard before termination) do not apply where a termination terminates a probationary contract
- Even where Section 41 does not apply, an employee denied any opportunity to mitigate before dismissal may have the summary dismissal converted to normal termination with notice pay
- An employee who has worked for at least two months is entitled to prorata leave at 1.75 days per completed month under Section 28(b) of the Employment Act
Court orders
#- 1.Conversion of the Claimant's summary dismissal to a normal termination
- 2.One month's pay in lieu of notice
- 3.3.5 days' pay in lieu of leave
- 4.Prorata pay for the period between 1st April and 20th April 2011
- 5.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and labour relations dispute referred to the Industrial Court under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- John Ochieng Odie v Kenya National Examination Council [2015] KEELRC 786 (KLR)[2015] KEELRC 786 (KLR)3 Mar 2014
Cite this brief
#Cite this brief
Caselaw, "MERCY W. KINYUA V WESTLIFE CONSTRUCTION COMPANY LTD [2013] KEELRC 464 (KLR)", Case Analysis (2013). Cause 1627 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/464/eng@2013-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.