Kenya Union of Domestic Hotels, Education, Institution and Hospital Workers v Baba Dogo Catholic Church School [2018] KEELRC 378 (KLR)
The bottom line
#A Kenyan court ruled five long-serving teachers were unfairly sacked after refusing to sign probation forms, and awarded them compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether probationary provisions could apply to long-serving employees whose contracts were renewed
Probation applies only to new employees; the Grievants had served more than a year, so the probation period did not apply and their refusal to sign the probation forms was not misconduct justifying termination
The court adopted the reasoning in Carole Nyambura Thiga v Oxfam that probation serves job-adjustment purposes for new employees and that perpetual probation clauses on old employees amount to unfair labour practice. Since all Grievants had over one year of continuous service, the probation requirement was inapplicable, and the misunderstanding arose from the Respondent's failure to explain the forms.
Whether the procedure followed in terminating the Grievants was fair
The procedure was flawed; the requirements of sections 41 and 45 of the Employment Act were not followed and the termination was unfair
The Grievants were neither issued with show cause letters nor accorded a proper hearing as required by section 41. They were suspended for six weeks without contractual basis and issued warning letters for merely seeking clarification. The misunderstanding stemmed from the Respondent's failure to explain, making the termination substantively and procedurally unfair.
What remedies were available to the Grievants
Reinstatement and payment for the remainder of the contract were not tenable; compensation for unfair termination was awarded based on length of service and the high-handed manner of termination
Reinstatement was barred by lapse of three years since dismissal. Payment for the unexpired contract failed because the Grievants had not offered services. The court exercised discretion under the Employment Act to award varying months of salary per Grievant, factoring in unlawful suspension, the Grievants' faultlessness and length of service.
Legal principles established
#- Probation is meant for new employees and cannot be imposed on long-serving employees on renewal of contracts; employees terminated while not validly on probation retain statutory unfair termination protections
- Failure to follow sections 41 and 45 of the Employment Act renders a termination unfair
Court orders
#- 1.Finding that the termination of the employment of the Grievants was unfair
- 2.Compensation for unfair termination: Millicent Adika – Kshs.178,200; Hellen Wanjiru Kimani – Kshs.131,500; Christopher Ndung'u – Kshs.75,000; Benard Nzioki – Kshs.34,500; Philip Wanyama – Kshs.34,500
- 3.Respondent to pay claimant's costs assessed at Kshs.75,000 to cover reasonable expenses and disbursements
- 4.Decretal sum to attract interest at court rates from date of judgment to payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Article 41 of the Constitution invoked by parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic Hotels, Education, Institution and Hospital Workers v Baba Dogo Catholic Church School [2018] KEELRC 378 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/378/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.