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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 378 (KLR)

Kenya Union of Domestic Hotels, Education, Institution and Hospital Workers v Baba Dogo Catholic Church School [2018] KEELRC 378 (KLR)

Employment and Labour Relations Court
7 December 2018
2,255 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant sued on behalf of five Grievants, teachers employed by the Respondent church school, seeking damages for wrongful, unprocedural and unfair termination effected on 30th June 2012. The Grievants, long-serving teachers, were issued 5-year contracts in January 2012 containing probation clauses and were asked to sign end-of-probation review forms. They sought clarification, refused to sign, were suspended for six weeks, issued warning letters, and were ultimately terminated for failing to obey a lawful command. The Respondent defended the termination as lawful dismissal of insubordinate probationary employees. The court framed two issues: whether the termination was lawful and whether the Grievants were entitled to the prayers sought. Relying on Carole Nyambura Thiga v Oxfam, the court held that probation applies only to new employees; all Grievants had served more than a year, so the probation requirement did not apply. The procedure was also flawed, as the requirements of sections 41 and 45 of the Employment Act, 2007 were not followed, rendering the termination unfair. Reinstatement was refused as three years had lapsed, and payment for the remainder of the contract was refused because the Grievants had not offered services. The court awarded compensation for unfair termination of 12, 10, 8, 3 and 3 months' salary respectively, totalling Kshs.453,700, plus costs assessed at Kshs.75,000 and interest at court rates from the date of judgment. Judgment was delivered by Maureen Onyango, J on 7th December 2018.

Key legal issues

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01

Whether probationary provisions could apply to long-serving employees whose contracts were renewed

Holding

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

Reasoning

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.

p. 3
02

Whether the procedure followed in terminating the Grievants was fair

Holding

The procedure was flawed; the requirements of sections 41 and 45 of the Employment Act were not followed and the termination was unfair

Reasoning

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.

p. 3
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What remedies were available to the Grievants

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Finding that the termination of the employment of the Grievants was unfair
  2. 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. 3.Respondent to pay claimant's costs assessed at Kshs.75,000 to cover reasonable expenses and disbursements
  4. 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

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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, 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.