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ELRCPartially AllowedCause Number 1068 of 2012· [2014] KEELRC 254 (KLR)

Danish Jalang’o & another v Amicabre Travel Services Limited [2014] KEELRC 254 (KLR)

Industrial Court of Kenya at Nairobi
18 September 2014
JRJames Rika
3,944 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that probationary employees cannot sue for unfair termination; only the contract's notice terms apply during probation.

What this practically means

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Executive summary

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Two drivers employed by Amicabre Travel Services Limited on one-year contracts sued for unfair and unlawful termination following their dismissal on 23rd March 2012, claiming 12 months' salary compensation, notice pay, annual leave pay, damages for loss of gain, costs and interest. The 2nd Claimant was terminated within his six-month probation period. The court held that Sections 41, 43 and 45 of the Employment Act 2007 do not apply to probationary contracts; Section 42 is a standalone law, and termination during probation requires only 7 days' notice or pay in lieu. The court expressly declined to follow Samuel G. Momanyi and Mercy Njoki Karingithi, which had extended full unfair termination protections to probationers, and held breaches of probationary contracts are remediable only in contractual damages. The 2nd Claimant's claim was dismissed entirely. The 1st Claimant, dismissed after expiry of his 3-month probation, was found to have been terminated for a valid and fair reason - incompatibility under Section 45(2)(b), a position upheld on the authority of Dede Esi Annie Amanor-Wilks v Actionaid International - but the procedure was flawed under Section 41, as no record showed he was accompanied by a colleague or union representative and the charges were not in writing. He was awarded one month's gross salary (Kshs. 13,958) as compensation. Both Claimants to receive terminal benefits as offered by the Respondent; no order on costs and interest. Dated and delivered at Nairobi on 18th September 2014 by Rika J.

Key legal issues

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01

Applicability of unfair termination law to probationary contracts

Holding

Sections 41, 43 and 45 of the Employment Act 2007 have no application to termination of probationary contracts; Section 42 is a standalone and complete code for probation

Reasoning

The court held Section 42 a standalone law regulating a special formative employer-employee relationship. It declined to follow decisions (Momanyi; Karingithi) extending full unfair termination protections to probationers, reasoning that probation would otherwise be meaningless, employers would bear procedural costs for unsuitable new employees, and Parliament's intention in creating qualifying periods would be blurred. Breach of probation terms attracts contractual damages only.

p. 5
02

2nd Claimant's termination during probation

Holding

Lawful; he was paid 7 days' wages in lieu of notice per contract and Section 42(4)

Reasoning

The 2nd Claimant was terminated within the 6-month probation period. The contract allowed termination on 7 days' notice or 7 days' pay. He was paid notice pay and offered prorata leave. No obligation to hear him or give substantive justification existed; his claim was dismissed in its entirety.

p. 5
03

1st Claimant's termination after probation

Holding

Terminated on a valid and fair reason (incompatibility) but through an unfair procedure under Section 41

Reasoning

The 1st Claimant was past his 3-month probation when dismissed. Incompatibility, evidenced by quarrels with colleagues at Nairobi and Thika and complaints by the Workshop Manager and Security Officer, was a valid and fair reason under Section 45(2)(b). However, no record showed he was accompanied by a colleague or union representative at the hearing and specific charges were not in writing, breaching Section 41; compensation limited to 1 month's gross salary given 5 months' service.

p. 6

Legal principles established

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  • The unfair termination protections under Sections 41, 43 and 45 of the Employment Act 2007 do not apply to probationary contracts; termination during probation is regulated solely by the contract and Section 42
  • Breach of a probationary contract is remedied through contractual damages, not statutory compensation for unfair termination
  • An employee's incompatibility is a fair reason for termination under Section 45(2)(b) of the Employment Act 2007
  • Procedural protections under Section 41 belong to the Employee and are not diminished by the Trade Union's non-involvement

Court orders

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  1. 1.The Respondent shall pay to the 1st Claimant 1 month gross salary at Kshs. 13,958 in compensation for unfair termination
  2. 2.The 2nd Claimant's Claim is dismissed in its totality
  3. 3.Both Claimants to receive terminal benefits as tabulated and offered by the Respondent on the date of termination
  4. 4.No order on the costs and interest

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 42
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45
  • Employment Act 2007Section 45(3)
  • Employment Act 2007Section 44(4)
  • Constitution of KenyaArticle 41

Cases cited (5)

  • Catherine E. Nyawira Nyaga v. the Wilderness Lodges Limited
    Industrial Court of Kenya Cause Number 784 of 2010 [UR]
  • Carole Nyambura Thiga v. Oxfam
    [2013] e-KLR
  • Mercy Njoki Karingithi v. Emrald Hotels and Resorts Limited
    Cause No. 337 of 2013 [2014] e-KLR
  • Samuel G. Momanyi v. the Attorney General & Another
    [2012] e-KLR
  • Dede Esi Annie Amanor-Wilks v. Actionaid International
    Cause Number 635 of 2010 [2014] e-KLR
Jurisdiction invoked
Jurisdiction of the Industrial Court under the Employment Act 2007 over disputes of unfair and unlawful termination (Issue in Dispute: Unfair and Unlawful Termination)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Danish Jalang’o & another v Amicabre Travel Services Limited [2014] KEELRC 254 (KLR)", Case Analysis (2014). Cause Number 1068 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/254/eng@2014-09-18

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