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ELRCDismissedNot stated in judgment· [2019] KEELRC 2513 (KLR)

Catherine Wanjiru v Board of Afya Yetu Initiative [2019] KEELRC 2513 (KLR)

Employment and Labour Relations Court
17 January 2019
NMNzioki wa Makau
715 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that when a fixed term contract simply expires and is not renewed, the employee has not been dismissed and cannot claim unfair termination.

What this practically means

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Executive summary

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The Claimant sued the Respondent alleging unlawful dismissal from employment without reasons, seeking compensation, three months' salary in lieu of notice, general damages and emoluments totalling Kshs. 1,387,035, damages for lost earnings from 7th January 2015 with a 5% annual increment, reinstatement as General Secretary and programme coordinator of the CBHIS project, costs and interest. The Respondent defended the suit on the basis that the Claimant served on a two-year fixed term contract as programme coordinator (acting team leader) which expired by effluxion of time on 31st December 2014, that she was never a fully fledged Secretary General, and that she was not dismissed. The Claimant relied on an email of 7th January 2015 confirming her termination and cited authorities on unfair termination, while the Respondent relied on authority that there is no obligation to renew a fixed term contract and that no cause of action lies for failure to confirm an acting position. The court found that the exhibited contract ran from 1st January 2013 to 31st December 2014, was signed by the Respondent's representative, and was never renewed. Since by January 2015 no contract existed, the Claimant was not dismissed; the 7th January 2015 email spoke of non-renewal, not dismissal, and constructive dismissal (a change of working conditions to force resignation) was not established. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the Claimant was dismissed or her contract simply expired

Holding

The Claimant was not dismissed; her two-year fixed term contract expired on 31st December 2014 and was not renewed, and the email of 7th January 2015 merely confirmed non-renewal

Reasoning

The court examined the contract exhibited by the Respondent, running from 1st January 2013 to 31st December 2014, signed by the Respondent's representative though not by the Claimant. There was no evidence of renewal. The email the Claimant relied on spoke of non-renewal of the contract, not dismissal, so no termination occurred and the claim could not stand.

p. 2
02

Whether constructive dismissal was established

Holding

No constructive dismissal was established because the email relied on referred to non-renewal of the contract, not a forced resignation through altered working conditions

Reasoning

The court defined constructive dismissal as a change of the employee's conditions of work to force their resignation. Applying that definition, the email of 7th January 2015 on which the Claimant relied did not evidence such a change; it spoke of non-renewal. The claim for unfair termination therefore failed and the suit was dismissed.

p. 2

Legal principles established

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  • Where an employee's fixed term contract expires and is not renewed, the employee is not dismissed and cannot claim unfair termination
  • Constructive dismissal occurs when there is a change of the employee's conditions of work to force their resignation

Court orders

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  1. 1.The suit is dismissed with no order as to costs

Authorities

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Cases cited (4)

  • Michael Gitau Njoroge v Board of Management Afya Yetu Initiative
    [2015] eKLR
  • Dishon Kamau Muiruri v Kenya Revenue Authority
    [2015] eKLR
  • The Registered Trustees De la Salle Christian Brothers t/a St. Mary's Boys Secondary School v Julius D. M. Baini
    [2017] eKLR
  • Henry Ochindo v NGO Coordination Board
    [2015] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (specific provision not stated in judgment)

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, "Catherine Wanjiru v Board of Afya Yetu Initiative [2019] KEELRC 2513 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2513/eng@2019-01-17

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