Kenya County Government Workers Union v County Public Service Board of Kiambu County [2020] KEELRC 852 (KLR)
The bottom line
#The Employment Court ruled that Kiambu County unfairly sacked workers whose contracts never stated they were on probation, and awarded them notice pay and compensation.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Claimant union
The Claimant had locus standi to institute the suit on behalf of the grievants, as union dues deducted from their payslips proved membership
Article 41(2)(c) of the Constitution and section 4 of the Labour Relations Act protect the right to join a trade union. Section 48(3) of the Labour Relations Act makes Form S proof of membership. CW1's payslip for November 2012 showed union dues deducted from her salary, evidencing membership and grounding the union's right to sue on the grievants' behalf.
Whether the grievants were on probationary contracts
The grievants were not on probationary contracts because their letters of appointment did not state that they were on probation
Section 2 of the Employment Act defines a probationary contract as one in writing which expressly states it is for a probationary period. The letters of engagement exhibited by the claimant did not state probationary terms and did not provide for notice of termination. The grievants were therefore entitled to one month's notice or pay in lieu under Section 35 of the Employment Act.
Substantive and procedural fairness of the termination
The termination was both substantively and procedurally unfair: no valid reason was proved and no notice was issued
There was no evidence that the respondent was compelled to withdraw the employment or that fresh interviews were held and the grievants failed to qualify; the Ombudsman correspondence did not substantiate the nepotism complaints. The advertised positions did not account for the positions held by the grievants, and no qualifications or replacements were identified. Procedurally, even on probation, Section 42(4) required a minimum of 7 days' notice, which was never issued.
Entitlement to reliefs
Violation of the Employment Act was established; the alternative remedy of compensation was awarded in place of reinstatement, plus pay in lieu of notice and four days' December 2012 salary
The CBA violation was not proved as the CBA was not produced, and no constitutional violation was declared since the Employment Act provides adequate remedies. Reinstatement was time-barred under Section 12(3)(c) of the ELRC Act (3-year limit), so compensation under Section 49 of the Employment Act was awarded instead, together with pay in lieu of notice which RW1 admitted was not given, and the unpaid December 2012 salary.
Legal principles established
#- A probationary contract must be in writing and expressly state that it is for a probationary period; absent such express terms, the employee is entitled to statutory notice of termination
- Union membership evidenced by deduction of union dues from salary grants a trade union locus standi to institute suit on behalf of grievants
- Even a genuine probationary employee is entitled to a minimum of 7 days' notice of termination under Section 42(4) of the Employment Act
Court orders
#- 1.Four days' salary for December 2012 awarded to each grievant
- 2.One month's salary in lieu of notice awarded to each grievant
- 3.Three months' salary as compensation for unfair termination awarded to each grievant
- 4.The claimant to tabulate the award for each grievant within 30 days and forward the tabulation to the respondent for confirmation for purposes of preparation of a decree
- 5.The respondent to pay the claimant's costs, with interest accruing from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12 (Employment Act remedies; Article 41 of the Constitution invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya County Government Workers Union v County Public Service Board of Kiambu County [2020] KEELRC 852 (KLR)", Case Analysis (2020). Memorandum of Claim filed 19th June 2015 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/852/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.