Hellen Kemunto v Mumiflora Limited [2019] KEELRC 387 (KLR)
The bottom line
#An Kenyan court ruled an employer unfairly fired an employee by treating her as a probationer, but most of her discrimination claims failed, netting only modest compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the extension of probation was lawful
The purported extension of probation without the claimant's agreement was contrary to section 42(2) of the Employment Act; employment was therefore confirmed on 17th June, 2014.
Section 42(2) permits extension of probation only with the employee's agreement. The letter of 13th June, 2014 purporting to extend probation by three months was never approved or consented to by the claimant, who denied receiving it. Without such consent the extension was contrary to the mandatory provisions of section 42, so employment stood confirmed on expiry of the three-month probation on 16th June, 2014.
Whether termination was unfair
Termination under the mistaken belief that the claimant was still on probation, without notice or hearing, was unfair termination contrary to section 45 of the Employment Act.
The employer terminated employment relying on probationary terms, but employment had been confirmed. No complaints against the claimant were brought to her attention before termination, no notice under section 35 was given and no hearing under section 41 was afforded. The reasons given rested on the erroneous probationary premise, so the termination failed the thresholds of sections 35, 41 and 43 and was unfair under section 45, attracting compensation limited to one month's pay given the short service and payment of terminal dues.
Whether the claimant was discriminated against on grounds of pregnancy
No discrimination was established; the evidence on the medical report directions and scans was incoherent and the comparator was in a different position.
The claim of a verbal direction to produce a medical report was not supported by written instructions, and the chronology of scans and the report was incoherent, removing the respondent from the relevant period. The comparator, Peter Mwangi, held a different position as Production Manager and was confirmed after appraisal. Discrimination allegations engage section 5 and section 46 of the Employment Act and Article 27 of the Constitution, but on the evidence no discriminatory treatment on grounds of pregnancy or failure to confirm was proved.
Legal principles established
#- A probationary period may only be extended with the agreement of the employee; without such agreement the employment stands confirmed on expiry of the initial probation.
- Termination of a confirmed employee without notice, hearing or valid reasons founded on a mistaken belief of probationary status is unfair termination contrary to section 45 of the Employment Act.
- Dismissal on grounds of pregnancy is prohibited and constitutes discrimination contrary to section 46 of the Employment Act and Article 27 of the Constitution.
Court orders
#- 1.The claims made are found without merit save for an award of compensation at Ksh.55,000.00
- 2.The claimant shall be paid 25% of her costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Constitution and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellen Kemunto v Mumiflora Limited [2019] KEELRC 387 (KLR)", Case Analysis (2019). Cause No. 503 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/387/eng@2019-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.