David Araka v Uchumi Supermarkets Limited [2021] KEELRC 834 (KLR)
The bottom line
#A Kenyan court ruled that once probation lapses without confirmation, an employee is treated as confirmed and can only be dismissed with proper procedure and a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant remained on probation at the time of termination
The Claimant was on probation when the termination notice was issued; his probation effectively ran to 21st February 2017 because the two weeks' notice extended beyond the six-month term, and the Respondent did not comply with its own contract and HR Policy in ending probation
The letter of appointment provided for six months' probation terminable by two weeks' notice. The termination notice dated 6th February 2017 took effect to 21st February 2017, seven days after the probation lapsed. The Respondent also failed to follow paragraph 3.6.3 of its HR Policy requiring written notice of unsatisfactory performance and extension of probation.
Whether the termination was wrongful
The termination was wrongful because the Respondent breached the contract and its HR Policy, failing to conduct a second evaluation before deciding not to confirm the Claimant
Apart from the October 2016 appraisal, no evaluation preceded the termination; the next appraisal occurred on 14th February 2017, after dismissal. The Court relied on CMC Aviation Ltd v Mohammed Noor that wrongful dismissal involves breach of the employment contract, and found the Claimant was not given a fair playing field.
Whether the termination was lawful and fair
The termination was unlawful because the Claimant was deemed confirmed by operation of law upon lapse of probation, and the Sections 41 and 42 procedural protections were not complied with
Following Narry Philemons Onaya-Odeck v Technical University of Kenya, once probation lapsed the Claimant could only be terminated under Sections 35, 40 and 44 of the Employment Act or by mutual agreement. No hearing or opportunity to make representations was given, and Section 42(1) on poor performance was not complied with.
Whether the Claimant was entitled to the reliefs sought
Declaration granted; leave days, off duty days, one month's salary in lieu of notice and one month's compensation awarded; damages for loss and suffering refused
The Court applied Sections 28 and 49(1)(c) and (4) of the Employment Act, prorating leave for six months and seven days of service and capping compensation at one month's salary given the short tenure. The general damages claim failed for want of evidence.
Legal principles established
#- Where an employee's probationary period lapses without confirmation or termination, the employee is deemed confirmed by operation of law and may only be terminated in accordance with the Employment Act's substantive and procedural requirements
- Termination for poor performance requires the employer to demonstrate an evaluation system and afford the employee an opportunity to be heard under Section 41 of the Employment Act; failure renders the termination procedurally flawed
- Wrongful dismissal is breach of the employment contract, such as dismissal without or with insufficient notice
Court orders
#- 1.A declaration that the Claimant's termination dated 6th February 2017 was wrongful and unlawful
- 2.Kshs.43,333 awarded for accrued leave days
- 3.Kshs.50,000 awarded for off duty days
- 4.One month's salary of Kshs.100,000 in lieu of notice
- 5.Kshs.100,000 awarded as compensation for wrongful and unlawful termination under Section 49(1)(c) of the Employment Act
- 6.Judgment entered for the Claimant in the total sum of Kshs.293,333 with costs and interest at Court rates from the date of judgment
- 7.The claim for damages for loss and suffering dismissed for lack of evidence
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (matter referred to Sections 2, 28, 35, 40, 41, 42, 44, 49 of the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutyota v Horeca Kenya Limited (Cause 2477 of 2016) [2023] KEELRC 379 (KLR)[2023] KEELRC 379 (KLR)10 Feb 2023
Cite this brief
#Cite this brief
Caselaw, "David Araka v Uchumi Supermarkets Limited [2021] KEELRC 834 (KLR)", Case Analysis (2021). Cause No 1076 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/834/eng@2021-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.