Abdulrahman K. Ramadhan & another v Easy Coach Limited [2014] KEELRC 782 (KLR)

Section 2 of the Employment Act defines a probationary contract as one of not more than twelve months' duration, in writing and expressly stating it is for a probationary period. Since the 1st Claimant's contract was not reduced into writing and the probationary period was never set, the employer could not impute undocumented terms in its favour.

Relying on Simon Muguku Gichigi v Taifa SACCO Society Limited, the Court held that an employer cannot circumvent its obligations by producing a form of discharge executed by the employee; if the law is not followed, no discharge can cure the irregularity. The Court therefore proceeded to examine the substance and procedure of the terminations notwithstanding the vouchers.

The Court found the investigations inadequate to link the Claimants to pilferage: there was no evidence of how mechanical faults or leakages were ruled out, fuel tanks had tamper-proof seals that were never shown to be broken, and the drivers' only role was to deliver vehicles to a manned fueling point. The excessive consumption was a systemic failure, and shifting the burden of identifying culprits to the Claimants was misplaced.

The Claimants denied receiving the show cause letters and the Respondent's witness could not say how or when they were served. The Claimants denied attending disciplinary meetings; no panel member testified and the Claimants had not signed the proceedings, so the Court could not establish that disciplinary meetings took place. Curiously, the summary dismissal letters made no mention of the disciplinary proceedings.

The Court found the Claimants' salary was within the minimum wage for bus drivers, and that standard overtime was paid as set out in the Collective Bargaining Agreement negotiated between the Respondent and the Claimants' union. The underpayment and overtime claims were therefore dismissed.