Bii v Safaricom Limited (Cause 1271 of 2018) [2023] KEELRC 1290 (KLR)
The bottom line
#A Kenyan court ruled that an employee whose probation ends without evaluation is automatically confirmed, and employers must prove poor performance with real evidence.
What this practically means
#Executive summary
#Key legal issues
#Status of employment as at 31st August 2015
The Claimant's employment had transitioned from probationary to permanent and pensionable terms, having been confirmed by operation of law.
Probation under the December 2014 contract ended on 18th March 2015. No appraisal was done within that period; the probation report was prepared almost 6 months later, in September 2015. The Respondent did not extend probation under Section 42(2) of the Employment Act, and the Claimant continued working. Following Ndolo J in David Namu Kariuki and Mbaru J in Narry Philemons Onaya-Odeck, the lapse of probation without confirmation or extension operates as confirmation by effluxion of time.
Substantive justification for termination
The Respondent failed to prove a valid and fair reason for termination, as the alleged poor performance was neither particularised nor proved by evidence.
The non-confirmation letter was in substance a termination for non-performance. The Respondent adduced no evidence - no completed performance evaluation form, no particulars of the alleged poor performance, and no demonstration of an operative performance management system. Under Sections 43 and 45 of the Employment Act and the high evidential burden for poor-performance terminations in Jane Samba Mukala, the Respondent failed to discharge its burden.
Procedural fairness of the termination
Section 41 of the Employment Act was not complied with; termination was procedurally unfair.
The Respondent adduced no evidence of an invitation to a disciplinary hearing or of minutes. The Claimant's uncontroverted evidence was that the hearing was shambolic, based on the previous contract, without a performance review report, and without an opportunity to defend herself. The mandatory elements of Section 41 as set out in Postal Corporation of Kenya v Andrew K. Tanui were not met.
Quantum of compensation
The equivalent of 3 months' gross salary was awarded as fair compensation under Section 49(1)(c).
The court considered the short duration of employment (about 1 year and 8 months across both contracts), the absence of previous warnings or disciplinary hearings, the Claimant's wish to continue in employment as evidenced by her appeal, and her contribution to the termination. These factors supported a moderate award of 3 months' gross salary rather than the 12 months claimed.
Legal principles established
#- Once a probationary period lapses without appraisal or extension, the employee is deemed confirmed by effluxion of time
- Termination must be both substantively justifiable and procedurally fair
- Poor performance places a high burden of proof on the employer, requiring a performance evaluation system
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair
- 2.One month's salary in lieu of notice less the amount already paid
- 3.12 days annual leave under the permanent and pensionable contract
- 4.Equivalent of 3 months gross salary as compensation for unfair termination
- 5.Respondent to issue the Claimant's P9 forms for 2014 and 2015 within 30 days
- 6.Costs of the suit to the Claimant
- 7.Interest at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bii v Safaricom Limited (Cause 1271 of 2018) [2023] KEELRC 1290 (KLR)", Case Analysis (2023). Cause No 1271 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1290/eng@2023-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.