Anthony Mugetha Irungu v Co-operative University College of Kenya [2018] KEELRC 903 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot quietly abandon a disciplinary process and fire a 'probationer' whose probation had already expired.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was on probationary service at the time of termination
The probationary period had lapsed and was never validly extended; the claimant was entitled to confirmation, so probationary termination clauses did not apply.
The claimant was appointed on six months' probation from 01.03.2011, lapsing about 01.09.2011, but termination came on 02.12.2011. No extension was agreed as required by clause 4 of the appointment letter and section 42(2) of the Employment Act, and the supervisor failed to submit probationary progress reports under section 3.9.1.2 of the HR Policies. In absence of adverse reports the service was deemed satisfactory.
Whether the termination was unfair
The termination was unfair both substantively (no valid reason under section 43) and procedurally (section 45), and the unilateral abortion of the disciplinary process was an unfair labour practice under Article 41.
The respondent commenced a disciplinary process via a show-cause letter but abandoned it without notice and purported to terminate under clause 7 on probationary terms, which was unavailable. The allegations of divulging confidential information were never substantiated by evidence. Section 45(3) did not bar the claim under 13 months' service. The Court adopted its reasoning in Jadiah M. Mwarania v Kenya Reinsurance Corporation Limited.
What remedies the claimant is entitled to
Declarations granted; 10 months' gross salary compensation awarded; damages for professional injuries, re-engagement, accrued salaries/benefits and prospective earnings refused.
Considering the aggravating factor that the respondent initiated disciplinary proceedings but failed to substantiate the allegations, that the claimant did not contribute to the termination, that confirmation had been recommended, and balancing justice with the short period served, the Court awarded 10 months' gross salaries. Claims not supported by submissions or computation were deemed abandoned or surrendered.
Legal principles established
#- An employer is not entitled, unilaterally and without notice to the employee, to abort a disciplinary process already commenced; doing so amounts to an unfair labour practice contrary to Article 41 of the Constitution.
- Where an employer fails to extend probation within the contractual and statutory framework (including reliance on progress reports), the employee is deemed confirmed and probationary termination provisions do not apply.
- Section 45(3) of the Employment Act does not bar an employee who has served less than 13 months from complaining of unfair termination.
Court orders
#- 1.Declaration that the claimant was a permanent employee of the respondent by virtue of section 42(2) of the Employment Act, 2007
- 2.Declaration that the termination of the claimant's employment by the respondent was unlawful, malicious, and unprocedural as it was a breach of the contract of service and Article 41 of the Constitution on fair labour practices
- 3.Respondent to pay the claimant 10 months' gross salaries in compensation for the unfair termination at the last gross monthly pay (less tax) and to pay by 01.12.2018 failing interest to run at Court rates from the date of judgment till full payment
- 4.Respondent to pay costs of the suit
- Jurisdiction invoked
- Article 41 of the Constitution of Kenya, 2010 and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Mugetha Irungu v Co-operative University College of Kenya [2018] KEELRC 903 (KLR)", Case Analysis (2018). Cause No 609 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/903/eng@2018-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.