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ELRCPartially AllowedCause No 1886 of 2014· [2016] KEELRC 65 (KLR)

Evans Kiage Onchwari v Hotel Ambassadeur Nairobi [2016] KEELRC 65 (KLR)

Employment and Labour Relations Court
29 July 2016
LNLinnet Ndolo
1,215 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 employers cannot unilaterally put permanent staff on probation and fire them without a fair process, awarding the worker compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent hotel as a supervisor from 1st March 2004 at Kshs. 12,000 per month, sued for wrongful and unfair termination of his employment on 1st October 2012, claiming 12 months' salary in compensation, one month's salary in lieu of notice, accrued leave pay, costs and interest. The Respondent contended that following a change of management in 2012 the Claimant was placed on a probationary contract governed by Section 42 of the Employment Act, that his employment was terminated on the strength of an 'End of Probation Report' dated 25th September 2012, and that no claim under Section 41 lay. The court framed three issues: whether the Claimant was on probation, whether the termination was fair, and entitlement to remedies. It held that the Respondent produced no written probationary contract as the statutory definition in Section 2 requires; that a permanent employee cannot unilaterally be converted to probation absent a mutually agreed performance improvement programme; and that a body corporate's obligations survive a change of management. The court also disagreed with Rika J's decisions in Danish Jalang'o and Dixon Amdama, holding that probationary employees retain Article 41 rights and that Section 42(1), like Section 45(3), would be unconstitutional. Finding no disciplinary process under Section 41, the court held the termination unfair under Section 45. It awarded 8 months' salary in compensation, one month's notice pay and one year's leave pay, totalling Kshs. 116,400, with interest at court rates and costs to the Claimant.

Key legal issues

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01

Whether the Claimant was on a probationary contract

Holding

No - the Respondent produced no written probationary contract as required by the statutory definition, and conversion of a permanent employee to probation cannot be a unilateral decision.

Reasoning

Section 2 of the Employment Act defines a probationary contract as one of not more than twelve months, in writing and expressly stating it is probationary. No written contract was produced. The Claimant had been a permanent employee before the change of management, and a change of management does not break employment obligations of a body corporate. Conversion to probation could not be done unilaterally without a mutually agreed performance improvement programme.

p. 2
02

Constitutionality of Section 42(1) of the Employment Act

Holding

The court disagreed with authority holding that Sections 43 and 45 do not apply to probationary contracts and declared that Section 42(1) would also be unconstitutional.

Reasoning

Article 41 of the Constitution guarantees employment and labour rights for all, limitable only under Article 24. Limiting rights by mere length of service fails the Article 24 threshold. Even a probationer found unsuitable retains Article 41 rights; parties to employment contracts cannot walk out at will.

p. 3
03

Whether the termination was justifiable and fair

Holding

No - the termination was unfair under Section 45 as there was no disciplinary process under Section 41 and no established valid reason.

Reasoning

Section 43 requires an employer to establish a valid reason for termination, ordinarily achieved through an internal disciplinary process within Section 41 dictates before termination. The 'End of Probation Report' both accused the Claimant of poor performance and terminated his employment simultaneously, showing no prior process was followed. The court therefore found the termination unfair within Section 45.

p. 3

Legal principles established

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  • The obligations of a body corporate must survive change in management; a change of management does not break an employee's continuity of employment.
  • A permanent employee may only be put on probation for a definite period under a performance improvement programme mutually agreed with the employer; probation cannot be imposed unilaterally.
  • Probationary employees enjoy constitutional employment and labour rights under Article 41; limiting those rights by reason of length of service does not meet the threshold in Article 24.
  • Section 42(1) of the Employment Act, to the extent it ousts procedural fairness under Section 41 for probationary contracts, would be unconstitutional.

Court orders

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  1. 1.Award of 8 months' salary in compensation for unfair termination (Kshs. 96,000)
  2. 2.Award of 1 month's salary in lieu of notice (Kshs. 12,000)
  3. 3.Award of leave pay for 1 year (Kshs. 8,400)
  4. 4.Interest on the award at court rates from the date of the award until payment in full
  5. 5.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment ActSection 42
  • Employment ActSection 42(2)
  • Employment ActSection 41
  • Employment ActSection 2
  • Employment ActSection 42(1)
  • Employment ActSections 43 and 45
  • Employment ActSection 45(3)
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 24

Cases cited (3)

  • Danish Jalang'o & Another v Amicabre Travel Services Limited
    [2014] eKLR
  • Dixon Amdama v Amani Tiwi Beach Resort
    [2015] eKLR
  • Samuel G. Momanyi v the Attorney General & Another
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (dispute of employment and labour relations)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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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, "Evans Kiage Onchwari v Hotel Ambassadeur Nairobi [2016] KEELRC 65 (KLR)", Case Analysis (2016). Cause No 1886 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/65/eng@2016-07-29

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