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ELRCPartially AllowedCause Number 1401 of 2013· [2018] KEELRC 2287 (KLR)

Robert Odongo Asenah v Super Foam Limited [2018] KEELRC 2287 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
9 February 2018
ANAbuodha J. N.
948 words in judgment
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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 credit controller from March 2013 at a gross salary of Kshs 70,000, was summarily dismissed on 1st July 2013 on grounds that his performance was below the respondent's expectations and standards. The respondent asserted the claimant was on a three-month probation which was verbally extended by a month, after which a decision was made at a meeting to terminate his services; it contended he was paid Kshs 44,360 in full settlement of terminal dues. The claimant testified that he was never given a hearing, never confirmed in employment, and that his dismissal was linked to his reporting on a customer's underpayments. The respondent's HR manager conceded that performance assessments were based on reports, that communication over performance was verbal, and that the probation extension was verbal. The court held that although probation is intended to test an employee's skills and performance, the respondent produced no appraisals or minutes evidencing the alleged poor performance. Citing section 42(2) of the Employment Act, the court held that extension of probation beyond the contractual period requires the employee's consent, which was absent here. Termination only a month after expiry of probation, without written notice of deficiencies or a performance improvement programme, was unfair. The court awarded the claimant three months' salary as compensation for unfair termination, with costs of the suit. The overtime claim was not awarded, the claimant having been in Senior Management. Judgment was delivered at Nairobi on 9th February 2018 by Abuodha J. N.

Key legal issues

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01

Fairness of termination for poor performance after probation

Holding

Termination was unfair; no appraisals or minutes evidenced the poor performance and no hearing or performance improvement process was afforded

Reasoning

The court accepted that probation exists to test an employee's skills and that performance becomes the focus during probation. However, the respondent, having alleged unsatisfactory performance, produced no appraisals or minutes of any performance discussions. The employee was terminated a month after expiry of probation on a verbal extension, without written notification of deficiencies or a performance improvement programme, making the termination unfair.

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02

Validity of the verbal extension of probation

Holding

Extension of probation requires the employee's consent under section 42(2); the verbal one-month extension could not justify termination

Reasoning

Section 42(2) of the Employment Act permits extension of a probationary period up to six months but only with the employee's consent. The respondent's extension was verbal and unconsented. Termination only a month after expiry of probation, absent appraisals, was therefore unfair. The court found for the claimant and awarded three months' salary as compensation.

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Legal principles established

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  • Termination on account of poor performance requires written evidence of the deficiencies and an opportunity to improve, ideally through a performance improvement programme
  • Extension of a probationary period beyond the statutory limit requires the employee's consent under section 42(2) of the Employment Act

Court orders

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  1. 1.The respondent to pay the claimant three months' salary as compensation for unfair termination of services
  2. 2.The claimant to have costs of the suit

Authorities

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Legislation

  • Employment Actsection 42(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (section 42(2) applied) over a claim for unfair termination

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, "Robert Odongo Asenah v Super Foam Limited [2018] KEELRC 2287 (KLR)", Case Analysis (2018). Cause Number 1401 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2287/eng@2018-02-09

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