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ELRCPartially AllowedCause No. 1333 of 2011· [2015] KEELRC 734 (KLR)

Kyalo Musyoki v Teckpak Industries Limited [2015] KEELRC 734 (KLR)

Employment and Labour Relations Court
21 July 2015
HWHellen S. Wasilwa
523 words in judgment
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The bottom line

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Kenya's Employment Court ruled probationary employees can be dismissed on 7 days' notice without a hearing, and cannot claim unfair termination before 13 months' service.

What this practically means

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Executive summary

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The claimant, Kyalo Musyoki, sued Teckpak Industries Limited alleging wrongful and unlawful termination of employment and non-payment of terminal dues. He claimed he was employed on 1/11/2010 on a two-year contract at a monthly salary of Kshs. 12,500 plus house allowance of Kshs. 2,600. He received a show cause letter on 1/12/2010 concerning a stock adjustment of about 150,000 pieces of silver foil that did not tally with physical stock, responded the same day, and had his services terminated on 6/12/2010 without reasons being given. He sought damages and one month's salary in lieu of notice. The respondent, through the Federation of Kenya Employers, maintained it was entitled to dismiss him for wilful neglect of duty under Section 44(4) of the Employment Act 2007, and that a probationer was not entitled to a hearing under Section 41. The court held that since the claimant was still on probation, Section 42(1) of the Employment Act excluded the Section 41 hearing requirements, and that under Section 45(3) an employee with only one month of service could not complain of unfair termination, the statute requiring at least thirteen months of continuous employment. The court awarded the only remedy available: 7 days salary as notice pay, computed at 7/30 x 15,100, being Kshs. 3,523, and ordered issuance of a Certificate of Service. Each party was ordered to bear their own costs. The claim thus succeeded only in part, with the substantive unfair termination claim dismissed.

Key legal issues

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01

Applicability of Section 41 hearing requirements to probationary employees

Holding

Section 41 did not apply because the claimant was still on probation when his services were terminated

Reasoning

The court found that the claimant was employed on 1/11/2010 and terminated on 6/12/2010, still within probation. Section 42(1) of the Employment Act expressly excludes Section 41 from probationary contracts, so the absence of a disciplinary hearing did not render the termination unlawful.

p. 2
02

Right to complain of unfair termination under Section 45(3)

Holding

A claimant with only one month of service lacked the requisite thirteen months of continuous employment to claim unfair termination

Reasoning

Section 45(3) requires continuous employment of not less than thirteen months immediately preceding termination. Having served about one month, the claimant had no statutory right to complain of unfair termination, narrowing the dispute to a notice-pay entitlement only.

p. 2
03

Entitlement on termination of a probationary contract

Holding

The only remedy was 7 days salary as notice pay plus a certificate of service

Reasoning

Because the probationary contract could be terminated on 7 days notice, the court quantified notice pay at 7/30 of the monthly salary of 15,100 (basic 12,500 plus house allowance 2,600), awarding Kshs. 3,523, and ordered issuance of a Certificate of Service.

p. 2

Legal principles established

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  • The fair hearing protections of Section 41 of the Employment Act do not apply to termination of a probationary contract
  • Only an employee continuously employed for not less than thirteen months immediately before termination has the right to complain of unfair termination under Section 45(3)

Court orders

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  1. 1.Payment of 7 days salary as notice pay calculated at 7/30 x 15,100 = Kshs. 3,523
  2. 2.Issuance of a Certificate of Service to the claimant
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act 2007Section 44(4)
  • Employment Act 2007Section 41
  • Employment Act 2007Section 42(1)
  • Employment Act 2007Section 45(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment cause)

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, "Kyalo Musyoki v Teckpak Industries Limited [2015] KEELRC 734 (KLR)", Case Analysis (2015). Cause No. 1333 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/734/eng@2015-07-21

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