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ELRCPartially AllowedCause 304 of 2015· [2016] KEELRC 1712 (KLR)

Christine Kagendo Maore v BOB Morgan Services Ltd [2016] KEELRC 1712 (KLR)

Employment and Labour Relations Court of Kenya
12 February 2016
OMOnesmus Makau
1,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed as a Sales and Administration Officer from 5 January 2015 on a gross salary of Kshs. 63,000/=, was terminated on 7 April 2015 while on probation without the seven days' notice provided in her appointment letter. She sued under sections 41, 45 and 47 of the Employment Act seeking terminal dues and compensation for unfair termination. The respondent admitted the employment but defended the termination as a lawful exercise of its right to terminate a probationary contract for poor performance, asserting the claimant had been paid her dues and issued a certificate of service. The court held that termination during probation is governed solely by section 42 of the Employment Act, which excludes the section 41 hearing protections, permitting termination on seven days' notice or wages in lieu. The respondent's termination letter promised accrued salary and benefits, so the termination was proper and lawful. On quantum, the court found the salary in lieu of notice was underpaid because it was computed on Kshs. 30,000/= exclusive of allowances, awarding Kshs. 14,700/= less Kshs. 5,250/= already paid, i.e. Kshs. 9,250/=. The court, however, held that only basic salary applies in computing leave compensation absent contrary agreement, excluding car and telephone allowances. The claim for compensation for unfair termination was dismissed. Judgment was entered for the claimant for Kshs. 9,250/= plus a quarter of the costs of the suit and interest.

Key legal issues

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01

Fairness of termination during probation

Holding

The termination during probation was proper and lawful, being governed only by section 42 of the Employment Act and the contract, which permitted termination on seven days' notice or pay in lieu

Reasoning

Section 42(1) of the Employment Act excludes section 41 protections for probationary contracts. The claimant's appointment letter allowed either party to terminate on seven days' written notice or equivalent salary in lieu. The respondent's letter promised accrued salary and benefits, satisfying the requirement. Procedural fairness under sections 41 and 45 therefore did not apply.

p. 2
02

Underpayment of salary in lieu of notice

Holding

The salary in lieu of notice was underpaid because it was assessed on Kshs. 30,000/= exclusive of allowances; the claimant was awarded Kshs. 9,250/= being Kshs. 14,700/= less Kshs. 5,250/= paid

Reasoning

The court held that compensation for termination is the gross earnings for the notice period. The respondent assessed the notice pay on a basic salary of Kshs. 30,000/= excluding car and telephone allowances, contrary to the claimant's gross salary entitlement. The shortfall was awarded. However, leave calculation lawfully excluded the allowances.

p. 2

Legal principles established

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  • Termination of a probationary contract is not subject to the procedural fairness requirements of sections 41 and 45(2)(c) of the Employment Act; section 42 applies, requiring only seven days' notice or wages in lieu of notice
  • Compensation for termination of a contract of employment equals gross earnings for the notice period

Court orders

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  1. 1.Judgment entered for the claimant in the sum of Kshs. 9,250/=
  2. 2.A quarter of the costs of the suit awarded to the claimant
  3. 3.Interest on the decretal sum

Authorities

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Legislation

  • Employment Actsections 41, 42(1), 42(4), 45, 45(2)(c), 47
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes under the Employment Act

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, "Christine Kagendo Maore v BOB Morgan Services Ltd [2016] KEELRC 1712 (KLR)", Case Analysis (2016). Cause 304 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1712/eng@2016-02-12

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