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ELRCDismissedCause Number 1873 of 2011· [2014] KEELRC 606 (KLR)

Hudson Mudeheri v Garden Estate Academy [2014] KEELRC 606 (KLR)

Industrial Court at Nairobi
14 March 2014
2,643 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 ruled that an employee who deserted his probationary job effectively terminated his own contract, losing all claims against his employer.

What this practically means

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Executive summary

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The Claimant, a qualified P1 Teacher, sued Garden Estate Academy alleging unfair and unlawful termination of his employment on 4th July 2011 when he resumed duty after three days' sick off. He sought salary underpayments of Kshs. 19,210, prorated leave of 9 days, housing allowance, 12 months' salary as compensation for unfair termination, 2 months' notice pay, a declaration that termination was unfair, a certificate of service, costs and interest; he withdrew the prayer for reinstatement in his evidence. The Respondent maintained it employed him at a negotiated all-inclusive salary of Kshs. 8,500, that he absented himself without authorization on 30th June 2011, deserted duty, ignored a letter of 11th July 2011 asking him to resume, and that it never terminated his contract. The Court found handwritten annotations on the Claimant's job application indicated a 6-month probation from 15th February 2011. Having served only 4 months and 15 days, the Claimant was within probation, so Section 42(1) of the Employment Act applied and he would not have enjoyed the Section 41 procedural guarantees had the employer terminated. The Court found the Respondent did not instigate termination: the attendance registers supported absenteeism, the Claimant proved no sick-off application, and he effectively walked out of the employment. All monetary prayers failed, and the entire Claim was dismissed with no order on the costs on 14th March 2014.

Key legal issues

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01

Who initiated the termination of employment

Holding

The Claimant, by deserting duty, initiated termination; the Respondent did not instigate it

Reasoning

The attendance registers corroborated the Respondent's evidence of absenteeism and lateness. The Claimant did not prove he applied for or presented a sick-off chit. He left after being confronted by the School Manager and later demanded salary and a termination letter, apparently to found a claim. The Court concluded he walked out of the employment relationship.

p. 4
02

Applicability of Section 42(1) of the Employment Act to a probationary contract

Holding

The Claimant, serving 4 months and 15 days of a 6-month probation inferred from annotations on his application, fell under Section 42(1) and was entitled only to 7 days' notice or pay in lieu

Reasoning

Although the parties did not explain the handwritten comments on the employment application, the Court held it was proper to conclude a 6-month probation existed given no written contract. Consequently the Section 41 procedural guarantees did not apply, and the employee would only be entitled to 7 days' notice or equivalent pay had the employer terminated.

p. 4
03

Salary underpayment claim

Holding

The claim failed for want of proof of an applicable wage scale

Reasoning

The Claimant admitted accepting Kshs. 8,500 voluntarily because of promised increments, having proposed Kshs. 7,000 himself. He offered no wage instrument supporting the asserted Kshs. 12,342 scale for P1 Teachers in private schools, and never put that figure to the Respondent during pay negotiation.

p. 4

Legal principles established

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  • A probationary employee is not entitled to the procedural guarantees of Section 41 of the Employment Act but only to not less than 7 days' notice or pay in lieu
  • In the absence of a written contract, handwritten annotations on a job application may be relied upon to infer terms such as a probationary period

Court orders

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  1. 1.The entire Claim is dismissed with no order on the costs
Jurisdiction invoked
Jurisdiction as the Industrial Court over a dispute of unfair and unlawful termination of employment

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, "Hudson Mudeheri v Garden Estate Academy [2014] KEELRC 606 (KLR)", Case Analysis (2014). Cause Number 1873 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/606/eng@2014-03-14

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