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ELRCPartially AllowedCause 801 of 2015· [2019] KEELRC 688 (KLR)

Dennis Kiprono v Inilever Kenya Limited [2019] KEELRC 688 (KLR)

Employment and Labour Relations Court
1 October 2019
HWHellen S. Wasilwa
1,670 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded an employee 12 months' salary after finding his probation had expired and he was fired without a fair hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 1st August 2013 as an Accounts Assistant on a six-month probation at a monthly salary of Kshs. 121,272.42, sued for damages for wrongful termination and unpaid terminal dues after his services were terminated in August/September 2014 on grounds of poor performance. He sought service pay and accrued leave days of Kshs. 328,454.26, twelve months' salary as compensation, a certificate of service, interest and costs. The respondent admitted the employment but justified the termination on poor performance, alleging meetings were held, that probation was extended by consent, and that all terminal dues were paid at separation. It denied entitlement to service pay given NSSF membership. RW1, the respondent's Human Resource Business Partner, conceded on cross-examination that the claimant was never issued warning letters, that there were no records proving extension of the fixed term, no records of leave, and that the claimant did not go on leave. The court held that under Section 42(2) of the Employment Act probation could not exceed six months except by a written, agreed extension of up to six months; since no such extension was communicated, probation lapsed on 1st February 2014. The claimant, no longer on probation, could only be terminated for valid reasons after a Section 41 hearing, which was never accorded. The court found the termination unfair and awarded twelve months' salary as compensation and 40 days' leave pay, ordered issuance of a certificate of service, and awarded the claimant costs plus interest at court rates. Service pay was not awarded, the claimant having been an NSSF member.

Key legal issues

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01

Status of the claimant's employment after the purported probation period

Holding

The probation period ended on 1/2/2014 as there was no valid written, agreed extension; the claimant was therefore a confirmed employee at termination.

Reasoning

The court applied Section 42(2) of the Employment Act, which caps probation at six months and permits only one six-month extension with the employee's agreement. The court found no indication that the respondent communicated to the claimant that probation was not being extended or that any extension was agreed in writing, so probation lapsed on 1/2/2014.

p. 3
02

Fairness of the termination

Holding

The termination was unfair and unlawful because the claimant was not accorded a hearing as envisaged under Section 41 of the Employment Act.

Reasoning

Having ceased to be on probation, the claimant could only be terminated for valid reasons and after a disciplinary hearing. The respondent relied on poor performance but gave no warning letters and held no formal disciplinary hearing. The court found the termination was carried out without adherence to the law.

p. 3

Legal principles established

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  • A probationary period shall not exceed six months, and any extension must be agreed with the employee and be in writing.
  • Where probation is not validly extended, an employee may only be terminated with valid reasons and after a disciplinary hearing under Section 41 of the Employment Act.

Court orders

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  1. 1.Respondent to pay the claimant 12 months' salary as compensation for unlawful and unfair termination (Kshs. 1,455,309/=)
  2. 2.Respondent to pay the claimant 40 days' leave pay (Kshs. 161,700.56)
  3. 3.Respondent to issue the claimant with a certificate of service
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 42(2)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim under Section 45)

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, "Dennis Kiprono v Inilever Kenya Limited [2019] KEELRC 688 (KLR)", Case Analysis (2019). Cause 801 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/688/eng@2019-10-01

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