Wilson Simiyu v Chairman B.O.G Friends School Bokoli & another [2016] KEELRC 758 (KLR)

RW1 admitted the disciplinary process had lapses: the claimant was not informed of the charges beforehand, could not examine witnesses, and was not told of his right to be accompanied. The summons letter did not state the charges or that it was a disciplinary hearing, and the minutes did not reflect the grounds (incitement, insubordination, disrespect) on which dismissal was later based. Under sections 41, 43 and 45 the employer bore the burden of proving valid reasons and fair procedure and failed.

Section 42 of the Employment Act caps probation at six months and permits extension only with the employee's agreement. The Respondent never informed the Claimant of any extension or sought his consent. The court held the Respondent could not rely on its own failure to notify to disentitle the Claimant; the probation was therefore deemed successfully served and the Claimant confirmed, entitling him to the contractual three months' notice.

Although the Claimant served barely 7 months, the evidence showed the dismissal was actuated by his joining KUDHEIHA Workers: a board committee was formed on 21 April 2014 to investigate union recruitment days before the hearing, and RW1 accused him of allowing union officials into the school. Article 41 and 36 of the Constitution and section 46(c) and (d) of the Employment Act make union membership an invalid reason for dismissal, warranting maximum compensation of 12 months' gross salary of Shs.152,760.