Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedEmployment and Labour Relations Court at Nairobi, Claim dated 16th June 2020, filed 10th July 2020· [2021] KEELRC 719 (KLR)

Nancy Omolo v Mercy Corps [2021] KEELRC 719 (KLR)

Employment and Labour Relations Court
28 September 2021
3,809 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

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

#
The Claimant, employed on 1st October 2019 as Gender, Youth and Social Dynamics Lead on a one-year fixed-term contract at a gross monthly salary of Kshs. 633,800/-, sued the Respondent for unfair termination following termination on 2nd April 2020 on grounds of poor performance. She claimed notice pay, house allowance, salary for two days worked in April 2020, unpaid motivation/service pay, salary for the remainder of the contract, compensation for unfair termination and damages for violation of her right to fair labour practices. Her case was that she was never validly placed on probation, that her employment was constructively confirmed, that the unilateral extension of her probation was not negotiated, and that she was neither accused nor heard before termination. The Respondent maintained she was on a three-month probation, that she consented to its extension on 10th January 2020 after a failed performance review, that she was given feedback and a development plan, and that termination during probation required only 7 days' notice, which was given. Its witnesses, the Chief of Party Darius Radcliffe and Amy Ibold, attested to her poor performance. The Claimant relied on authorities on constructive confirmation, contra proferentem, fair disciplinary process and damages for fixed-term breach; the Respondent relied on authorities that an employer retains discretion over confirmation and that gross salary consolidates housing allowance. The Court found a performance review had been undertaken, albeit by a supervisor unfamiliar with the Claimant, and that the alleged workplace abuse was not particularised. Unable to discern unfairness but noting the unilateral probation extension, the Court dismissed the suit and ordered each party to bear their own costs.

Key legal issues

#
01

Status of the Claimant's employment - probationary or confirmed

Holding

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

Reasoning

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.

p. 4
02

Fairness of termination during probation

Holding

The termination was not found unfair; the Court could not discern any unfairness in the process or the reason

Reasoning

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.

p. 4

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. 1.The suit is dismissed
  2. 2.Each party to bear their own costs

Authorities

#

Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 49
  • Employment ActSection 35
  • Employment ActSection 31
  • Regulation of Wages (General) OrderRegulation 4

Cases cited (12)

  • Benjamin Nyambati Ondiba v Egerton University
    [2014] eKLR
  • Kenneth Kasemo Karisa v Kenya Bureau of Standards
    [2011] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    [2013] eKLR
  • Principal and B.O.G Machakos Teachers College v Wainbua Muange
    [2016] eKLR
  • Zacheus Okoth Oketch v Sustainable Aid In Africa International
    [2018] eKLR
  • Charles Muturi Mwangi v Invesco Assurance Company Limited
    [2016] eKLR
  • Charloy Sikuku Madiangi v Bunson Travel Service Limited
    [2018] eKLR
  • Esther Njeri Maina v Kenyatta University
    [2020] eKLR
  • National Union of Water and Sewerage Employees v Lake Victoria North Water Services Board Kakamega-Busia Water Supply
    [2018] eKLR
  • Danish Jalang'o & Another v Amicabre Travel Services Limited
    [2014] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
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.