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ELRCPartially AllowedPetition filed 10th October 2014 (Notice of Motion under Certificate of Urgency)· [2014] KEELRC 13 (KLR)

Peris Nyambura Kimani v Albit Petrolium Limited [2014] KEELRC 13 (KLR)

Industrial Court of Kenya
18 November 2014
MMM. Mbaru
4,996 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 an employer from enforcing dismissal of a pregnant, sick employee, holding her probation had legally lapsed after six months.

What this practically means

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Executive summary

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The Petitioner, employed by contract dated 18th November 2013 with effect from 6th January 2014 and placed on a six-month probation, returned from a work trip abroad and, being five months pregnant with a medically complicated pregnancy, obtained six days' sick off from 2nd October 2014, with her employer notified by delivery of a sick sheet on 6th October 2014. On 7th October 2014 she received an email terminating her employment. She moved the Industrial Court by Notice of Motion dated 10th October 2014 under Articles 22, 23, 26, 27, 41, 50, 159 and 258 of the Constitution and various sections of the Employment Act, seeking conservatory orders restraining enforcement of the termination, restraint on employing a replacement, and maintenance of her employment pending the petition. The Respondent opposed, contending she was still on probation, not confirmed, entitled to no hearing, and dismissible on seven days' notice or payment in lieu under section 42 of the Employment Act; it also alleged she took sick leave unprocedurally. The court held that under section 42 the Petitioner's probation lapsed by operation of law six months after employment began on 6th January 2014, absent proof of a valid extension agreed with her, so the purported probationary termination was an illegality. It further held that an employee absent on sick leave who has caused notification within a reasonably practicable time cannot be treated as absconding, and termination without hearing is a nullity. The court declined to determine the privacy allegation at the interim stage as premature. It granted conservatory orders restraining enforcement of the dismissal, directed resumption of duties without prejudice, medical support as a full-time employee, continuation of salary pending the petition, and priority hearing dates.

Key legal issues

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01

Whether the Petitioner remained on probation at the date of termination

Holding

The Petitioner's probation lapsed by operation of law on 6th July 2014, six months after her employment began; any unilateral extension without the employee's agreement was contrary to section 42 and the termination founded on it had no legal force.

Reasoning

Section 42 caps probation at six months, extendable by a further six months only with the employee's agreement. The Petitioner was employed on 6th January 2014, so by operation of law her status changed on 6th July 2014. The employer had to prove any valid extension; failing that, the purported probationary termination was an illegality and unenforceable under any written law.

p. 8
02

Whether summary dismissal of a sick employee without hearing is lawful

Holding

An employee absent on sick leave who has caused the employer to be notified as soon as reasonably practicable cannot be treated as absconding; termination without hearing is an unfair labour practice and a nullity.

Reasoning

Section 30 of the Employment Act requires an employee to notify the employer of sickness as soon as reasonably practicable, supported by a certificate of incapacity. Section 30(2) contemplates notification by others where the employee cannot act. Treating sickness as abscondment without hearing the employee is an unfair labour practice and renders any termination a nullity, whatever the probationary status asserted.

p. 7
03

Whether the constitutional anti-discrimination provisions apply to private employers

Holding

Articles 10 and 27 of the Constitution bind all persons, including private employers, prohibiting direct or indirect discrimination on grounds of pregnancy and health status, and section 5 of the Employment Act translates these rights into the employment regime.

Reasoning

The Constitution binds both public and private persons; Article 27(4) and (5) prohibit discrimination on grounds including pregnancy and health status. Article 27(6) mandates redress measures, of which the Employment Act is a logical product; section 5 prohibits employer discrimination on pregnancy grounds. These rights are enforceable by the court notwithstanding any contrary contractual stipulation.

p. 5

Legal principles established

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  • An employee who cites sickness as the reason for absence cannot be treated as having absconded duty ab initio; termination without hearing the employee on such a basis is a nullity.
  • By operation of section 42 of the Employment Act, an employee automatically attains full employment status upon the expiry of six months unless a valid extension of probation with the employee's agreement is proved by the employer.
  • A contract of employment must be read vis-à-vis the Constitution and applicable law; employers are bound by Bill of Rights provisions even where a contract of employment exists.

Court orders

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  1. 1.The Respondent is restrained from enforcing the summary dismissal against the Petitioner pending hearing and determination of the petition
  2. 2.The Petitioner shall resume her duties with the Respondent immediately without prejudice to the pending matter in court
  3. 3.The Petitioner shall receive medical support as a full time employee of the respondent
  4. 4.The Petitioner will continue to enjoy her current salary pending hearing and determination of the petition
  5. 5.Parties are to be given hearing dates on priority basis due to the nature of the interim orders and petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 26, 27, 41, 50, 159, 258
  • Employment Act, 2007Sections 5, 9, 10, 17, 18, 19, 20, 30, 35, 37, 41, 42, 43, 44, 45, 46(h), 49
  • Labour Institutions ActNot specified
  • Industrial Court ActNot specified

Cases cited (3)

  • Elizabeth Washeke and 62 Others versus Airtel (K) Limited
    Cause No. 1972 of 2012
  • Jane Wangari Njoroge versus EN Pertet t/a Joliday Nursery School
    Cause No. 1600 of 2011
  • Maria Kagai Ligaga versus Coca Cola Central Africa Limited
    Cause No. 511(N) of 2009
Jurisdiction invoked
Articles 22, 23, 26, 27, 41, 50, 159 and 258 of the Constitution of Kenya, 2010; sections 5, 9, 10, 17, 18, 19, 20, 35, 37, 43, 44, 45 and 49 of the Employment Act

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, "Peris Nyambura Kimani v Albit Petrolium Limited [2014] KEELRC 13 (KLR)", Case Analysis (2014). Petition filed 10th October 2014 (Notice of Motion under Certificate of Urgency). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/13/eng@2014-11-18

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