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ELRCPartially Allowed· [2014] KEELRC 756 (KLR)

Mercy Njoki Karingithi v Emrald Hotels Resorts & Lodges Ltd [2014] KEELRC 756 (KLR)

Industrial Court of Kenya
23 May 2014
RSRadido Stephen
2,245 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 even probationary employees are protected from unfair termination, awarding Mercy Njoki Kshs 213,333 despite working only two days.

What this practically means

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Executive summary

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In this undefended cause before the Industrial Court at Mombasa, the Claimant, Mercy Njoki, was appointed Executive Assistant by the Respondent by letter dated 24 July 2012, reporting on 10 August 2012 on two months' probation terminable by 7 days' notice or pay in lieu. On 22 August 2012 she was handed a revocation letter dated 13 August 2012 revoking her appointment with effect from 12 August 2012 on grounds that her appointment was unprocedural, with an offer of payment for 2 days worked plus 7 days' salary in lieu of notice. She claimed wages from 12 to 22 August 2012, general damages for loss of employment/earnings and expectation, and unfair termination. The Respondent filed appearance but no Response and did not appear at the hearing. The court framed the primary issue as whether revocation during probation is subject to procedural and substantive fairness tests. It held that section 42 of the Employment Act ousts the procedural fairness requirements of section 41 for probationers, so no hearing or notification is due. However, section 45's substantive fairness guarantee and Article 41 of the Constitution still apply during probation. Since the reason for revocation related solely to the employer's internal processes and was unchallenged, the revocation was unfair. The court followed Lenaola J's decision in Samuel G Momanyi v Attorney General invalidating section 45(3)'s 13-month qualifying period, while expressing doubts. The court awarded Kshs 200,000/- (five months' gross wages) as compensation and Kshs 13,333/- as wages for 10 days, totalling Kshs 213,333/-, declined general damages for loss of expectation, and made no order as to costs due to the Claimant's late filing of submissions.

Key legal issues

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01

Whether termination during probation is subject to procedural and substantive fairness

Holding

Procedural fairness under section 41 is excluded by section 42, but the substantive fairness guarantee in section 45(1) and (2) still applies during probation.

Reasoning

The court held that an employment relationship commences on appointment even during probation, generating legal obligations on both sides. Section 42 of the Employment Act ousts only the notification and hearing requirements of section 41 for probationers. However, the right not to be unfairly terminated under section 45 cannot be abrogated unless clearly expressed so, and Article 41 of the Constitution protects fair labour practices as a norm against which all employment conduct is measured. The employer bears the burden of proving a valid and fair reason even for a probationer.

p. 3
02

Whether the revocation of the Claimant's appointment was substantively fair

Holding

The revocation was unfair because the reason given - unprocedural appointment - related to the employer alone, not to the employee's conduct, capacity or performance.

Reasoning

The revocation letter gave as reason the unprocedural manner of the appointment, not any misconduct, poor performance, incapacity or lack of qualification on the Claimant's part. The Claimant's appointment was signed by senior managers while the revocation was signed by more junior officers. With no Response filed, the allegations stood unchallenged and the Respondent failed to prove a valid and fair reason. The revocation had nothing to do with the probationary nature of the employment.

p. 3
03

Effect of Samuel G Momanyi v Attorney General declaration that section 45(3) is unconstitutional

Holding

The Court followed the declaration by a court of concurrent jurisdiction, despite doubts, leaving the question for a higher court.

Reasoning

The court confessed it might have reached a different conclusion but for Lenaola J's declaration that the 13-month qualifying period in section 45(3) was inconsistent with Articles 28, 41(1), 47, 48 and 50(1). The judge expressed doubts about whether termination of an employment contract is subject to Article 47 but declined to depart from a decision of a court of concurrent jurisdiction, citing the polycentric effect of the declaration and the need for legislative certainty, deferring resolution to a higher court.

p. 3
04

Appropriate remedies for unfair termination during probation

Holding

Compensation of five months' gross wages (Kshs 200,000/-) plus wages for 10 days (Kshs 13,333/-); general damages for loss of expectation declined.

Reasoning

The effective date of termination was 22 August 2012, entitling the Claimant to wages for 10 days rather than the 2 days offered. Under section 49 of the Employment Act the court exercised discretion to award five months' gross wages as compensation, considering that although the Claimant actually worked only two days, she was legally employed for ten days, and the salary was Kshs 40,000/- per month.

p. 4

Legal principles established

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  • Section 42 of the Employment Act ousts the procedural fairness requirements of section 41 in dismissals during probation, so a probationer is not entitled to notification and hearing before termination.
  • The substantive fairness protection in section 45 of the Employment Act remains applicable to employees on probation; only procedural fairness under section 41 is abrogated.
  • Probation must not be used to deprive employees of fundamental rights and basic conditions of employment under the primary labour statutes.
  • Failure to file a Response means facts as pleaded are undisputed and unchallenged.

Court orders

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  1. 1.Respondent to pay the Claimant 5 months equivalent gross wages as compensation (Kshs 200,000/-)
  2. 2.Respondent to pay the Claimant wages from 12 August 2012 to 22 August 2012 (Kshs 13,333/-)
  3. 3.Total award of Kshs 213,333/-
  4. 4.No order as to costs

Authorities

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Legislation

  • Employment Actsections 41, 42, 45(1), 45(2), 45(3), 49(4)
  • Constitution of Kenya, 2010Articles 28, 41, 41(1), 47, 48, 50(1)
  • Industrial Court (Procedure) Rules, 2010not specified
  • Civil Procedure Rulesnot specified

Cases cited (1)

  • Samuel G Momanyi v Attorney General & Another
    (2012) eKLR
Jurisdiction invoked
Industrial Court (Procedure) Rules, 2010; Employment Act (first-instance employment and labour dispute jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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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, "Mercy Njoki Karingithi v Emrald Hotels Resorts & Lodges Ltd [2014] KEELRC 756 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/756/eng@2014-05-23

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