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ELRCDismissedCause No 90 of 2020· [2024] KEELRC 103 (KLR)

Monda v International Committee of the Red Cross (Cause 90 of 2020) [2024] KEELRC 103 (KLR)

Employment and Labour Relations Court of Kenya
1 February 2024
LNLinnet Ndolo
1,190 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Dr. Jonathan Monda was employed by the International Committee of the Red Cross as a Stafi Health Doctor effective 3rd June 2019 on a gross monthly salary of Kshs. 304,405. Following poor performance during his initial three-month probation, his probation was extended for a further three months by letter dated 30th August 2019. His employment was nonetheless terminated by letter dated 19th November 2019, effective 1st December 2019, on account of poor performance during probation. His appeal was heard on 8th January 2020 and dismissed. He sued alleging unlawful termination, violation of Articles 41(1), 41(2)(b), 28 and 54(1) of the Constitution, a sham hearing and appeal, and sought payment of the unexhausted contract period (Kshs. 1,826,550), one month's salary in lieu of notice, breach of contract damages, general damages, costs and interest. The Respondent maintained the termination was lawful under Section 42(4) of the Employment Act, its Stafi Regulations and the contract, and that terminal dues were paid in full and final settlement. Framing two issues - whether the termination was unlawful and whether remedies were due - the court found the Claimant had been notified of his shortcomings, given an opportunity to improve through extended probation, and subjected to a participatory evaluation to which he never objected. Applying the standard that an employer need only show awareness of shortcomings and opportunity to improve, the court held due process was followed. As the Claimant was on probation, he was entitled only to 7 days' notice, which was paid. The entire claim was dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the termination of the Claimant's employment during probation was unlawful

Holding

The termination was lawful; the employer followed due process by notifying the Claimant of his shortcomings, extending his probation, and subjecting him to a participatory performance evaluation.

Reasoning

The letter of 19th November 2019 terminated the contract on grounds of poor performance during probation. The court found the Respondent had raised performance concerns, extended probation by letter dated 30th August 2019, and produced contract validation forms signed by the Claimant confirming a participatory evaluation. The Claimant did not object to the evaluation or the extension. Applying the standard that an employer need only show the employee was made aware of shortcomings and given opportunity to improve, due process was met.

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02

Whether the Claimant was entitled to notice pay and contract remainder damages

Holding

No; being on probation, the Claimant was entitled only to 7 days' notice, which he received, and his claim for the unexhausted contract period and other damages failed.

Reasoning

The court held that the probationary status of the Claimant at the time of termination governed his notice entitlement, limiting it to 7 days' notice which had been duly paid. Since the finding on unlawful termination went against the Claimant, the remedies premised on wrongful termination - the unexhausted contract remainder, one month's notice pay, breach of contract and general damages - all fell away.

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Legal principles established

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  • In a claim based on termination of employment on the ground of poor performance, the employer need only demonstrate that the employee was made aware of their shortcomings and given an opportunity to improve.
  • An employee on probation at the time of termination is entitled only to a 7 days' notice period.

Court orders

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  1. 1.The Claimant's claim of unlawful termination of employment is disallowed
  2. 2.The Claimant's entire claim is dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1) and (2)(b)
  • Constitution of Kenya, 2010Articles 28 and 54(1)
  • Employment ActSection 42(4)
  • Employment ActSection 42(1)
  • Employment ActSection 41

Cases cited (1)

  • Jane Wairimu Machira v Mugo Waweru & Associates
    [2012] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Article 41 claims; Employment Act) as the forum for the claimant's unfair termination claim

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, "Monda v International Committee of the Red Cross (Cause 90 of 2020) [2024] KEELRC 103 (KLR)", Case Analysis (2024). Cause No 90 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/103/eng@2024-02-01

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