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ELRCAllowed· [2023] KEELRC 3282 (KLR)

Ooko v Avacare Kenya Limited (Employment and Labour Relations Cause E787 of 2021) [2023] KEELRC 3282 (KLR)

Employment and Labour Relations Court
8 December 2023
AMAnna Ngibuini Mwaure
4,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer cannot secretly extend probation, and even probationary employees must get a fair hearing before dismissal.

What this practically means

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Executive summary

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The Claimant was employed as a Senior Field Manager effective 17 February 2020 on a six-month probation. The Respondent extended his probation by three months by letter which the Claimant signed, then purported to extend it again for a further three months following a meeting of 19 November 2020, whose minutes the Claimant did not sign. On 18 January 2021 the Respondent terminated his employment citing non-performance, false reporting and falsified receipts. The court framed three issues: whether the contract was probationary, whether the dismissal was procedurally unfair, and entitlement to reliefs. The court held the second extension of probation was unilateral and breached section 10(5) of the Employment Act, which requires changes to contractual terms to be made in consultation with, and notified in writing to, the employee. The probation therefore lapsed and the Claimant's employment was deemed confirmed by operation of the law. On procedure, the court found that even probationary employees enjoy protection from arbitrary termination, and that the Respondent failed to accord the Claimant a notice to show cause or a disciplinary hearing, contrary to section 41 of the Employment Act; the termination letter was instant and without notice. Judgment was entered for the Claimant with awards of one month's salary in lieu of notice (Kshs 250,000) and one month's compensation under section 49(4)(e) (Kshs 250,000), totalling Kshs 500,000 with interest at court rates from the date of judgment until full payment, plus costs.

Key legal issues

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01

Whether the employment contract was probationary at the time of termination

Holding

The second extension of probation was not done with the Claimant's written consent or knowledge; probation had lapsed and employment was deemed confirmed by law.

Reasoning

The initial extension was validly signed by the Claimant, but the second extension purportedly effected on 19 November 2020 lacked his signature and the claimed contract of extension was never produced. RW1 could not explain why the minutes were unsigned. Under sections 10(5) and 42(2) of the Employment Act, variation of contractual terms requires written notification and the employee's agreement; absent that, probation lapsed and employment stood confirmed.

p. 7
02

Whether the dismissal was procedurally unfair

Holding

The termination was procedurally unfair because the Claimant was not given an opportunity to defend himself against the allegations, contrary to section 41 of the Employment Act.

Reasoning

The employer alleged poor performance, false reporting and forgery of receipts, but issued an instant termination letter without a warning letter, notice to show cause or disciplinary hearing. Even probationary employees are entitled to fair labour practices and protection from arbitrary termination. Denial of an opportunity to be heard breached section 41, rendering the dismissal unlawful and unfair.

p. 9

Legal principles established

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  • A probationary contract can only be extended with the employee's written consent; without it, the probation lapses and employment is deemed confirmed by operation of the law.
  • Whether or not an employee is on probation, the employer must adhere to fair labour practices, including the procedural requirements of section 41 of the Employment Act, before termination.

Court orders

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  1. 1.One-month salary in lieu of notice of Kshs 250,000
  2. 2.Compensation of one month's salary under section 49(4)(e) of the Employment Act of Kshs 250,000
  3. 3.Total award of Kshs 500,000 plus interest at court rates from date of judgment till full payment
  4. 4.Costs to the Claimant

Authorities

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Legislation

  • Employment Actsection 42(2)
  • Employment Actsection 41(1) and (2)
  • Employment Actsection 10(5)
  • Employment Actsections 43 and 45
  • Employment Actsection 49(4)(e)
  • Employment Actsections 10 and 13; 47(5)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Aysha Hafsa Musa v Computer Revolution Limited
    [2021] eKLR
  • Lucy Wangui Wanyika v Nam Consult Limited
    [2016] eKLR
  • Lear Shighadi Sinoya v Autech Systems Limited
  • Okumu v Good Man Agencies Limited
    (Cause 1895 of 2017) [2022] KEELRC 13514 (KLR)
  • Danish Jalang'o & another v Amicabre Travel Services Limited
    [2014] eKLR
  • Mwilo v Absa Bank (K) PLC
    (Cause 31 of 2020) [2022] KEELRC 53 (KLR)
  • Happiness Nyabonyi Maingu v Shreveji Chemical Limited
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment cause)

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, "Ooko v Avacare Kenya Limited (Employment and Labour Relations Cause E787 of 2021) [2023] KEELRC 3282 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3282/eng@2023-12-08

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