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ELRCPartially AllowedCause No 226 of 2014· [2016] KEELRC 1587 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers v General Manager, Sirikwa Hotel [2016] KEELRC 1587 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
11 March 2016
1,161 words in judgment
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The bottom line

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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

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Executive summary

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The Union, on behalf of the Grievant Zachareous Ondongi, challenged the termination of his employment as a cook by Sirikwa Hotel effective 13 July 2010, following an extension of his probation. The dispute, reported to the Cabinet Secretary for Labour and certified unresolved after conciliation, was heard at the Industrial Court, Nakuru. The Court framed three issues: whether the Grievant was still on probation, whether the termination was unfair, and the appropriate remedies. It found the appointment letter limited probation to two months with no provision for extension, and the contract incorporated the collective bargaining agreement between the Union and the Union of Kenya Hotelkeepers and Caterers Association, which likewise limited probation. The purported extension therefore lacked mutual agreement and the Grievant was deemed confirmed. As a confirmed employee, the Respondent could not rely on section 42 of the Employment Act, 2007; termination for unsatisfactory performance required a hearing under section 41. As no opportunity to make representations was accorded, the termination was procedurally unfair. Reinstatement was declined given industry dynamics, time lapse and section 49(4)(b); the Court awarded compensation equivalent to two months' gross wages (Kshs 25,360/-). The Union's unproved dues claim was rejected as evidence-by-submissions, but dues as computed and admitted by the Respondent were awarded. Total award: Kshs 75,407/-. Each party to bear own costs.

Key legal issues

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01

Whether the Grievant remained on probation at separation

Holding

The extension of probation lacked contractual authority; the Grievant was deemed confirmed

Reasoning

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.

p. 2
02

Whether termination was unfair

Holding

Procedurally unfair for want of a hearing under section 41 of the Employment Act, 2007

Reasoning

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.

p. 2
03

Appropriate remedies

Holding

Reinstatement declined; compensation of 2 months gross wages and dues as computed by the Respondent awarded

Reasoning

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.

p. 2
04

Use of submissions to introduce evidence of dues

Holding

Rejected; the Court could not second-guess unpleaded dues

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Declaration that termination of the Grievant's employment was unfair
  2. 2.Payment to the Grievant of dues as computed by the Respondent of Kshs 50,047/-
  3. 3.Compensation equivalent of 2 months gross wages of Kshs 25,360/-
  4. 4.Total award of Kshs 75,407/-
  5. 5.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsection 42
  • Employment Actsection 41
  • Employment Actsection 49(4)(b)
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

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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, "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.