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ELRCPartially AllowedCause No 968 of 2016· [2018] KEELRC 2410 (KLR)

Winnie Mghoi Rondo-Obinju v China Civil Engineering Construction Corporation (Kenya) Limited [2018] KEELRC 2410 (KLR)

Employment and Labour Relations Court
2 March 2018
LNLinnet Ndolo
2,298 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan employer was ordered to pay over Kshs. 1 million for firing an employee after she refused to sign a probation clause added months into her job.

What this practically means

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Executive summary

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The Claimant, employed as a Legal Officer by the Respondent with effect from 26th February 2016, alleged that her employment was terminated in June 2016 because of her pregnancy, amounting to discrimination and an unfair labour practice contrary to Article 41 of the Constitution and the Employment Act. She sought declarations, twelve months' salary as compensation, house allowance, punitive damages and costs. The Respondent admitted the employment but maintained that a four-month probation clause in a contract issued in June 2016 was lawful, and that the termination resulted from the Claimant's refusal to sign the contract during probation; it denied knowledge of the pregnancy. The Court framed two issues: the lawfulness and fairness of the termination, and entitlement to remedies. It held that the probation clause was introduced unilaterally and retrospectively, more than three months into employment and contrary to company practice, in violation of Sections 10(5) and 13(1) of the Employment Act, and that refusal to sign a unilaterally varied contract was not a valid reason for termination. The termination was therefore both substantively and procedurally unfair. However, applying GMV v Bank of Africa, the Court found no nexus between the Claimant's pregnancy and the termination and dismissed the pregnancy-based discrimination claim. The Court awarded six months' salary in compensation, one month's salary in lieu of notice under Section 35(1)(c), and house allowance at 15% of basic salary, totalling Kshs. 1,038,000, subject to statutory deductions and carrying interest from the date of judgment. The Claimant also received costs.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful and fair

Holding

The termination was both substantively and procedurally unfair because the probation clause was introduced unilaterally and retrospectively more than three months into employment, in violation of Sections 10(5) and 13(1) of the Employment Act; refusal to sign a unilaterally varied contract is not a valid reason for termination.

Reasoning

The appointment letter of 16th February 2016 made no mention of probation. The draft contract with a four-month probation clause was issued only in June 2016, near the end of the stated period, contrary to company practice of three months. The introduction of the clause was therefore unilateral and retrospective. Relying on David Njuguna Mwangi v De La Rue, the Court held termination for refusing such variation was unfair. The seven-day probationary notice was consequently misplaced.

p. 4
02

Whether the termination was on account of pregnancy (discrimination)

Holding

The claim failed; no nexus between the pregnancy and the termination was established.

Reasoning

Applying the test in GMV v Bank of Africa Kenya Limited, the Claimant needed to establish a nexus between the adverse employment decision and her pregnancy. Although she was pregnant when she left employment, the documentary trail showed the termination was triggered by her refusal to sign the contract containing the probation clause. The Court found no nexus between the pregnancy and the termination and dismissed that claim.

p. 5
03

What remedies are the Claimant entitled to

Holding

Six months' salary as compensation, one month's salary in lieu of notice under Section 35(1)(c), and house allowance at 15% of basic salary for four months, total Kshs. 1,038,000.

Reasoning

Compensation was tempered by the Claimant's short length of service despite the Respondent's conduct forcing her out prematurely. Since the probation clause was unprocedurally introduced, the seven-day probationary notice did not apply and one month's notice under Section 35(1)(c) was awarded. The pay slip showed a basic salary of Kshs. 120,000 with no consolidation of house allowance, so 15% was added, adopting Kshs. 138,000 as the salary.

p. 5

Legal principles established

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  • Unilateral introduction of a probation clause more than three months into employment violates Sections 10(5) and 13(1) of the Employment Act and cannot ground a valid termination
  • Failure to follow instructions based on unilateral variation of employment terms is not a valid reason for termination
  • Probationary contracts do not attract the procedural fairness safeguards of Sections 41, 43 and 45 of the Employment Act

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 1,038,000 comprising 6 months' salary in compensation (Kshs. 828,000), 1 month's salary in lieu of notice (Kshs. 138,000) and house allowance for 4 months (Kshs. 72,000)
  2. 2.The award is subject to statutory deductions and will attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant awarded the costs of the case

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment ActSection 5(3)
  • Employment ActSection 10(5)
  • Employment ActSection 13(1)
  • Employment ActSection 31(1) and (2)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 41 (including s.41(2))
  • Employment ActSection 42(4)
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 46

Cases cited (3)

  • Danish Jalang'o & another v Amicabre Travel Services Limited
    [2014] eKLR
  • David Njuguna Mwangi v De La Rue Currency and Security Limited
    [2017] eKLR
  • GMV v Bank of Africa Kenya Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution (as pleaded by the Claimant)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Winnie Mghoi Rondo-Obinju v China Civil Engineering Construction Corporation (Kenya) Limited [2018] KEELRC 2410 (KLR)", Case Analysis (2018). Cause No 968 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2410/eng@2018-03-02

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