Shicheni v Royal Ground Industries Kenya Ltd (Cause 377 of 2016) [2023] KEELRC 3 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether termination of a probationary employee without a hearing is unfair
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
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.
Whether the termination was substantively and procedurally fair
No - the respondent led no evidence and advanced no proved reasons, so termination was unfair and unjustified
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.
Remedies for unfair termination of a contract that had barely begun
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
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.
Legal principles established
#- 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
#- 1.Payment of 1 month salary in lieu of notice of Kshs 11,623
- 2.Payment of salary for April and May 2016 of Kshs 23,246
- 3.Compensation of 8 months' salary for unfair and unjustified termination (8 x 11,623 = Kshs 92,984)
- 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.Total award of Kshs 244,083 less statutory deductions
- 6.Respondent to pay costs of the suit plus interest at court rates from the date of the judgment
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.