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ELRCPartially AllowedCause No 1958 of 2013· [2018] KEELRC 938 (KLR)

George Otieno Omollo v Medimart Healthcare Limited [2018] KEELRC 938 (KLR)

Employment and Labour Relations Court
12 October 2018
LNLINNET NDOLOMOMAUREEN ONYANGO
1,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan probationary employees cannot sue for unfair termination, but are still entitled to seven days' notice pay and prorata leave.

What this practically means

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Executive summary

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The Claimant, employed as a Pharmacy Technologist on a six-month probationary contract dated 19th July 2013 at a monthly salary of Kshs. 28,000 (rising to Kshs. 30,000), was summarily dismissed on 12th November 2013 after being accused of misusing the office telephone for personal calls. He sued for wrongful and unfair termination, seeking one month's notice pay, unpaid leave allowance, twelve months' compensation and costs. The Respondent did not attend the hearing but filed a Response admitting the probationary contract and contending that a probationary employee could not bring an unlawful termination claim. The Court (Ndolo J) framed two issues: whether the Claimant, being on probation, could bring the claim; and his entitlement to notice pay and leave. Relying on Section 42(1) of the Employment Act, 2007 and Rika J's decision in Carole Nyambura Thiga v Oxfam [2013] eKLR, the Court held that probationary employees are excluded from the Section 41 procedural guarantees. It rejected counsel's attempt to distinguish wrongful dismissal from unfair termination, finding no legislative intent to create such categories. The unlawful termination claim was dismissed, but the Court awarded the statutory entitlements of a probationary employee: seven days' notice pay (Kshs. 7,000) and prorata leave for four completed months (Kshs. 7,000), totalling Kshs. 14,000, with interest at court rates from the date of judgment until payment in full. As the main claim failed, each party was directed to bear their own costs. Orders were issued accordingly.

Key legal issues

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01

Whether a probationary employee can maintain a claim for unlawful termination

Holding

The claim has no basis in law; Section 42(1) of the Employment Act, 2007 excludes the Section 41 procedural guarantees for probationary contracts

Reasoning

The Claimant's appointment letter placed him on six months' probation, and he admitted still being on probation at termination. Section 42(1) provides that Section 41 does not apply to termination of a probationary contract. The Court found no legislative intent to distinguish between unfair termination and wrongful dismissal, as the Act's remedies apply across the board.

p. 2
02

Entitlement to notice pay and leave for a probationary employee

Holding

Seven days' notice pay and prorata leave for four completed months of service

Reasoning

Section 42(4) of the Employment Act grants a probationary employee seven days' notice rather than one month. Leave entitlement accrues only for completed months of service, computed on the salary of Kshs. 30,000, yielding Kshs. 7,000 for each head, a total of Kshs. 14,000.

p. 2

Legal principles established

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  • The Section 42(1) limitation on probationary employees' claims applies regardless of whether the separation is labelled unfair termination or wrongful dismissal
  • Probationary employees are entitled to seven days' notice under Section 42(4) of the Employment Act

Court orders

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  1. 1.Judgment entered in favour of the Claimant for 7 days' pay in lieu of notice (Kshs. 7,000)
  2. 2.Prorata leave pay for 4 months (Kshs. 7,000), total Kshs. 14,000
  3. 3.The amount to attract interest at court rates from the date of delivery of judgment until payment in full
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 2 (definition of probationary contract)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(4)

Cases cited (1)

  • Carole Nyambura Thiga v Oxfam
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction 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, "George Otieno Omollo v Medimart Healthcare Limited [2018] KEELRC 938 (KLR)", Case Analysis (2018). Cause No 1958 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/938/eng@2018-10-12

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