Nancy Omolo v Mercy Corps [2021] KEELRC 719 (KLR)
The bottom line
#Kenya's Employment Court dismissed an unfair termination claim by an employee terminated during probation, but punished the employer's unilateral probation extension through a no-costs order.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimant's employment - probationary or confirmed
The Court did not resolve the status question in the Claimant's favour; the evidence showed a performance review was undertaken and the probation was extended, though the extension was unilateral
The Claimant argued the contract was constructively confirmed and that ambiguity should be construed contra proferentem. The Respondent argued the employer retains discretion whether to confirm an employee on probation, relying on Danish Jalang'o. The Court found the evidence pointed to a performance review having been undertaken, albeit by a supervisor who had not worked with the Claimant, and noted the Respondent unilaterally extended probation - a factor it weighed only on costs.
Fairness of termination during probation
The termination was not found unfair; the Court could not discern any unfairness in the process or the reason
The Claimant alleged she was neither accused nor heard and that the assessment was based on a supervisor lacking technical capacity. The Respondent produced witness statements from the Chief of Party and a colleague attesting to performance assessments, feedback, an extended probation and a development plan. The Court found the review was undertaken and that the Claimant's assertion of abuse at work was not particularised, leaving no basis to find unfairness.
Legal principles established
#- Where the court discerns no unfairness in a termination but the employer has unilaterally extended probation, the suit may be dismissed with each party bearing their own costs
Court orders
#- 1.The suit is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination of employment (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Omolo v Mercy Corps [2021] KEELRC 719 (KLR)", Case Analysis (2021). Employment and Labour Relations Court at Nairobi, Claim dated 16th June 2020, filed 10th July 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/719/eng@2021-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.