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ELRCPartially AllowedNot stated in the judgment (memorandum of claim dated September 21, 2016)· [2023] KEELRC 3 (KLR)

Shicheni v Royal Ground Industries Kenya Ltd (Cause 377 of 2016) [2023] KEELRC 3 (KLR)

Employment and Labour Relations Court
17 January 2023
2,763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that even probationary employees must be heard before dismissal, awarding a terminated worker over Kshs 244,000.

What this practically means

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Executive summary

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The claimant, employed as an assistant operator, was terminated on May 28, 2016 about a month into a one-year written contract commencing April 6, 2016. He claimed notice pay, underpayments, overtime, ofi duty pay, public holiday pay, leave, gratuity, unpaid April and May 2016 salary, breach of contract and section 49 compensation. The respondent asserted he was a casual labourer from 2015, then a probationary contract employee dismissed for laxity, lateness, insubordination and sleeping at work, and that he had been paid 7 days' notice. The respondent called no witnesses. The court found the contract was in its first month when terminated and there was no evidence the claimant was on probation; in any event, following the three-judge bench decision in the County Government Workers Union case, section 42 of the Employment Act was held unconstitutional for denying probationary workers a hearing. Because the claimant was never subjected to a disciplinary hearing and no reasons for termination were proved, the termination was unfair and unjustified under section 45(2). The court awarded one month's notice (Kshs 11,623), April and May 2016 salary (Kshs 23,246), 8 months' compensation (Kshs 92,984), and salary for the unexpired contract period June 2016 to April 2017 (Kshs 116,230), totalling Kshs 244,083 less statutory deductions, with costs and interest. Claims for underpayment, overtime, ofi duties, holidays, leave, gratuity and breach of contract were not included in the award. Judgment delivered on January 17, 2023 by Hellen Wasilwa, J.

Key legal issues

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01

Whether termination of a probationary employee without a hearing is unfair

Holding

Yes - even if the claimant was on probation, he was entitled to a hearing; section 42 insulating probationary terminations from the hearing requirement is unconstitutional

Reasoning

The court found the contract was within its first month when terminated, and there was no statement that the claimant was on probation. Even assuming probation, the claimant was never given an opportunity to defend himself. Relying on a three-judge bench decision of the ELRC in the County Government Workers Union case, the court held section 42 unconstitutional for denying probationary workers a hearing. Termination without a disciplinary hearing or reasons therefore failed the section 45(2) test.

p. 5
02

Whether the termination was substantively and procedurally fair

Holding

No - the respondent led no evidence and advanced no proved reasons, so termination was unfair and unjustified

Reasoning

The respondent called no witnesses. Allegations of laxity, lateness, insubordination and sleeping at work were unsupported by documentary evidence or testimony. Section 45(2) places the burden on the employer to prove a valid reason, a fair reason related to conduct, capacity or compatibility or operational requirements, and fair procedure. None was proved, so the termination was unfair.

p. 6
03

Remedies for unfair termination of a contract that had barely begun

Holding

Notice pay, salary arrears for April and May 2016, 8 months' compensation, and salary for the remainder of the fixed term (June 2016 to April 2017) were awarded

Reasoning

The court found for the claimant and awarded one month's notice, unpaid salary for April and May 2016, compensation of 8 months' salary under section 49, and payment for the unexpired remainder of the one-year contract, less statutory deductions, with costs and interest. Claims for underpayment, overtime, ofi duties, holidays, leave and gratuity were not included in the award.

p. 6

Legal principles established

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  • An employee facing termination, even on probation, is entitled to be heard before termination on grounds of misconduct
  • Section 42 of the Employment Act is unconstitutional insofar as it denies probationary workers a hearing
  • Termination is unfair where the employer fails to prove a valid and fair reason and fair procedure under section 45(2)

Court orders

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  1. 1.Payment of 1 month salary in lieu of notice of Kshs 11,623
  2. 2.Payment of salary for April and May 2016 of Kshs 23,246
  3. 3.Compensation of 8 months' salary for unfair and unjustified termination (8 x 11,623 = Kshs 92,984)
  4. 4.Payment of salary for the remainder of the contract period from June 2016 to April 2017 (10 x 11,623 = Kshs 116,230)
  5. 5.Total award of Kshs 244,083 less statutory deductions
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of the judgment

Authorities

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Legislation

  • Employment Act, 2007section 7
  • Employment Act, 2007section 8
  • Employment Act, 2007section 9
  • Employment Act, 2007section 10
  • Employment Act, 2007section 37
  • Employment Act, 2007section 41
  • Employment Act, 2007section 42
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44(3) and (4)
  • Employment Act, 2007section 45(1) and (2)
  • Employment Act, 2007section 49(1)(c) and 49(4)
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Evidence Act (Cap 80)sections 107, 108 and 109
  • Legal Notice No. 117 of 2015wages order (general labourer scale)

Cases cited (8)

  • Paul Waigiri Muruiki v Nairobi Water and Sewerage Company Limited
    [2015] eKLR
  • Joseph Oduor Anode v Kenya Red Cross
    [2012] eKLR
  • Cooperative Bank of Kenya Ltd v Banking Insurance and Finance Union, CA No 188 of 2014
    [2016] eKLR
  • Ol Pajeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • Peter Ngunjiri Kariuki v Board of Management Magomano Secondary School
    [2022] eKLR
  • Reef Hotel Limited v Josephine Chivatsi
    [2021] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    [2016] eKLR
  • The County Government Workers Union v NSSF Board & others, Petition No 34, 35, 38, 49 and 50 of 2014 (consolidated)
    (eKLR) 2022
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007 and Articles 41 and 47 of the Constitution of Kenya, 2010

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, "Shicheni v Royal Ground Industries Kenya Ltd (Cause 377 of 2016) [2023] KEELRC 3 (KLR)", Case Analysis (2023). Not stated in the judgment (memorandum of claim dated September 21, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3/eng@2023-01-17

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