Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers v General Manager, Sirikwa Hotel [2016] KEELRC 1587 (KLR)
The bottom line
#A Kenyan hotel employee whose probation was extended without agreement was legally confirmed, so firing him without a hearing was unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Grievant remained on probation at separation
The extension of probation lacked contractual authority; the Grievant was deemed confirmed
The appointment letter limited probation to 2 months and made no provision for extension. The contract incorporated the collective bargaining agreement between the Union and the Union of Kenya Hotelkeepers and Caterers Association, which expressly limited probation. Extension required mutual agreement which was absent, so the Grievant was automatically absorbed on expiry of the initial probation.
Whether termination was unfair
Procedurally unfair for want of a hearing under section 41 of the Employment Act, 2007
Having been deemed confirmed, the Respondent could not rely on section 42 protections for probationary employees. Termination for unsatisfactory performance required compliance with the peremptory hearing requirements of section 41. Nothing on record showed the Grievant was accorded an opportunity to make representations before termination, so the termination was procedurally unfair.
Appropriate remedies
Reinstatement declined; compensation of 2 months gross wages and dues as computed by the Respondent awarded
Reinstatement was inappropriate given industry dynamics, the time lapse, and section 49(4)(b) of the Employment Act. In lieu, the Court awarded the equivalent of 2 months gross wages proved as Kshs 12,680 per month. On dues, the Union led no evidence, but as the Respondent had admitted preparing dues, fairness dictated entitlement as computed by the Respondent.
Use of submissions to introduce evidence of dues
Rejected; the Court could not second-guess unpleaded dues
The Union did not lead evidence of the dues it sought. The Court held that submissions may not be used to sneak in evidence that was always available to a party. However, since the Respondent admitted in its Response that it had prepared dues which the Grievant declined to collect, the Court awarded those dues in the interest of fairness.
Legal principles established
#- An employer has no contractual authority to extend probation where the contract or applicable collective bargaining agreement limits the probation period; absent mutual agreement the employee is deemed confirmed
- Termination for unsatisfactory performance of a confirmed employee requires a hearing under section 41 of the Employment Act, 2007, and even terminations under contractual provisions are subject to the statutory minimum protections
- Submissions may not be used to introduce evidence never adduced at trial
Court orders
#- 1.Declaration that termination of the Grievant's employment was unfair
- 2.Payment to the Grievant of dues as computed by the Respondent of Kshs 50,047/-
- 3.Compensation equivalent of 2 months gross wages of Kshs 25,360/-
- 4.Total award of Kshs 75,407/-
- 5.Each party to bear own costs
- Jurisdiction invoked
- Trade dispute reported to the Cabinet Secretary for Labour and certified unresolved, heard under the Industrial Court's jurisdiction over unfair termination under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers v General Manager, Sirikwa Hotel [2016] KEELRC 1587 (KLR)", Case Analysis (2016). Cause No 226 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1587/eng@2016-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.