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ELRCPartially AllowedCause No 741 of 2015· [2020] KEELRC 808 (KLR)

Benson Kitema Mutua v Prestige American Fried Chicken [2020] KEELRC 808 (KLR)

Employment and Labour Relations Court
26 June 2020
2,284 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 ruled an employer cannot quietly extend probation without the worker's consent, making the dismissal unfair and awarding compensation.

What this practically means

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Executive summary

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The claimant, employed on 3.10.2014 as a supervisor of waiters on a three-month probation at a monthly salary of Kshs. 26,000 inclusive of house allowance, was dismissed on 17.3.2015 on grounds of poor performance, late reporting and connection with stock theft. He sued seeking a declaration that the termination was wrongful, illegal and unfair, Kshs. 400,433 in damages, interest, costs and a certificate of service. The respondent admitted the dismissal but justified it as a probation termination, asserting a letter of 3.1.2015 extended the probation and that terminal dues were paid. The court framed four issues: whether the dismissal fell within probation, whether there was a valid and fair reason, whether fair procedure was followed, and entitlement to reliefs. It held the alleged probation extension was unenforceable because there was no proof of service of the extension letter or of the claimant's consent, as required by section 42(2) of the Employment Act; the probation therefore lapsed and the claimant was deemed confirmed. The respondent failed to prove valid reason under section 45, producing no attendance records, appraisals, job description or warnings, and Rw1 admitted the decision to dismiss was made before the claimant was heard, breaching section 41. The dismissal was declared unfair and unlawful. The court awarded one month's salary in lieu of notice, one month's compensation, 10.5 days' leave pay and house allowance at 15% of salary for six months, totalling Kshs. 85,900, less statutory deductions, plus costs and interest. Claims for March 2015 salary and unremitted NSSF/NHIF were declined, and a certificate of service was ordered.

Key legal issues

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01

Whether the dismissal occurred during the probation period

Holding

The probation lapsed and the claimant was deemed confirmed; the alleged extension was unenforceable for want of service and consent.

Reasoning

The contract provided three months' probation from 3.10.2014. The respondent's letter of 3.1.2015 purporting to extend probation was not proved to have been served, and Rw1 admitted the claimant's consent was required but never obtained. Section 42(2) of the Employment Act caps probation at six months but requires the employee's agreement for extension. Following Lucy Wangui Wanyika and Wilson Simiyu, the court held probation expired by effluxion of time and the claimant was confirmed.

p. 2
02

Whether there was a valid and fair reason for termination

Holding

The respondent failed to prove valid reason under section 45 of the Employment Act.

Reasoning

The respondent alleged poor performance, late reporting and involvement in stock theft. No attendance register, performance appraisal records, warning letters or job description were produced; the employees allegedly caught stealing were never named and the theft was not reported to police. The burden lay on the employer, and it was not discharged.

p. 3
03

Whether a fair procedure was followed

Holding

No fair procedure was followed; the decision to dismiss preceded the hearing.

Reasoning

Section 41 requires an employer to explain the reasons to the employee and invite representations before deciding termination. Rw1 admitted the decision to dismiss was made before the claimant was heard, and the claimant's explanation was sought only after dismissal had been decided. The respondent therefore failed to prove compliance with section 41.

p. 3
04

Reliefs entitlement

Holding

Declaration of unfair termination granted; notice pay, one month's compensation, leave pay, house allowance and certificate of service awarded; salary for March 2015 and NSSF/NHIF claims declined.

Reasoning

Under section 49 the claimant, who served six months, was granted one month's salary in lieu of notice and one month's compensation. Leave was computed at 1.75 days per month for six months, and house allowance at 15% of salary under section 31. Certificate of Service was awarded under section 51.

p. 3

Legal principles established

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  • A probationary period cannot be extended beyond the contracted period without the employee's consent; absent consent, the employee is deemed confirmed upon expiry of the probation.
  • Where a probation period lapses, termination must be for a valid reason and after fair procedure under sections 41 and 45 of the Employment Act.
  • An employer must accord an employee a hearing before deciding to terminate on grounds of misconduct or poor performance.

Court orders

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  1. 1.Declaration that the dismissal of the claimant was unfair and unlawful
  2. 2.One month salary in lieu of notice (Kshs. 26,000.00)
  3. 3.One month salary compensation for unfair termination (Kshs. 26,000.00)
  4. 4.Leave pay for 10.5 days (Kshs. 10,500.00)
  5. 5.House allowance at 15% of salary for six months (Kshs. 23,400.00)
  6. 6.Total judgment of Kshs. 85,900.00 less statutory deductions, plus costs and interest at court rates from the date of judgment
  7. 7.Certificate of Service to issue to the claimant

Authorities

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Legislation

  • Employment Actsection 42(2)
  • Employment Actsection 26
  • Employment Actsection 45
  • Employment Actsection 41
  • Employment Actsection 49
  • Employment Actsection 31
  • Employment Actsection 51

Cases cited (2)

  • Lucy Wangui Wanyika v NAM Consult Ltd
    [2016] eKLR
  • Wilson Simiyu v. Chairman BOG Friends School Bokoli & Another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act reliefs invoked; no specific provision pleaded)

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, "Benson Kitema Mutua v Prestige American Fried Chicken [2020] KEELRC 808 (KLR)", Case Analysis (2020). Cause No 741 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/808/eng@2020-06-26

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