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ELRCPartially AllowedPetition dated 4th April 2023 (ELRC)· [2024] KEELRC 221 (KLR)

Mutua v CFAO Motors Kenya Limited (Employment and Labour Relations Petition E065 of 2023) [2024] KEELRC 221 (KLR)

Employment and Labour Relations Court
9 February 2024
AMAnna Ngibuini Mwaure
4,843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a nine-year employee can't be put on probation and fired without a fair hearing, awarding six months' salary.

What this practically means

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Executive summary

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The Petitioner, employed by the Respondent from 27th September 2011 as a cashier and later promoted to assistant accountant and then compliance officer, challenged her termination by letter dated 18th December 2020 on grounds of failure to improve under a Performance Improvement Plan. She contended that the termination lacked substantive justification and procedural fairness, that she was never accorded a hearing as required by section 41 of the Employment Act, and that the termination was in reality precipitated by her pregnancy. The Respondent maintained that upon her February 2020 transfer she signed a fresh contract on probationary terms, that her performance fell short, that a PIP was duly undertaken, and that a hearing and appeal were afforded. The court framed three issues: applicability of the probation period, lawfulness and fairness of the termination, and entitlement to reliefs. Following Carole Nyambura Thiga v Oxfam and the Baba Dogo case, the court held probation could not apply to an employee of over nine years' standing. On fairness, applying section 41 of the Employment Act and the authorities on poor-performance terminations, the court found the employer failed to prove poor performance and that the Petitioner was never given an opportunity to defend herself; no disciplinary hearing was shown to have been convened. The termination was held substantively and procedurally unfair. Judgment was entered for the Petitioner: prayers A, B and C granted, including six months' salary as compensation for unfair termination (Kshs 960,000). Prayers D and E were not proved and were refused. Interest was awarded at court rates from the date of judgment, and costs followed the event in favour of the Petitioner.

Key legal issues

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01

Whether the probation period applied to the Petitioner's employment

Holding

The probation period did not apply because the Petitioner was not a new employee; she had served the Respondent for over 9 years in different capacities

Reasoning

Relying on Carole Nyambura Thiga v Oxfam and KUDHEIHA v Baba Dogo Catholic Church School, the court held probation is meant for new employees. The Petitioner had worked for the Respondent since 2011 and merely transferred to a new role in 2020; reverting her to probationary terms was an unfair labour practice unknown to the Constitution and Kenyan employment laws.

p. 7
02

Whether the termination was lawful and fair

Holding

The termination was substantively and procedurally unfair; the Petitioner was not given an opportunity to defend herself against the allegation of poor performance

Reasoning

Section 41 of the Employment Act requires that an employee facing termination be explained the ground and given an opportunity to be heard. The court found no evidence that the Petitioner was invited to or attended a disciplinary hearing; the 18th December 2020 meeting merely communicated the termination. The employer also failed to prove poor performance with credible performance evaluation tools as required by Jane Samba Mukala v Ol Tukai Lodge.

p. 9
03

Whether the Petitioner was entitled to the reliefs sought

Holding

Prayers A, B and C granted, including 6 months' salary (Kshs 960,000) as compensation for unfair termination; prayers D and E refused as unproved

Reasoning

Having found the termination unfair, the court entered judgment for the Petitioner and exercised discretion to award the equivalent of six months' gross salary based on her last contract of 2020. The remaining heads of relief (D and E) were not proved, so no award was made under them.

p. 9

Legal principles established

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  • A long-serving employee cannot be placed on probation upon transfer to a new role; such a perpetual probation clause has no place in Kenyan labour law
  • An employer alleging poor performance bears a high level of proof and must show performance measures and compliance with section 41 of the Employment Act
  • Termination must be both substantively justified and procedurally fair

Court orders

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  1. 1.Judgment entered in favour of the Petitioner; prayers A, B and C of the petition granted
  2. 2.Award of 6 months' salary equivalent as compensation for unfair termination, Kshs 960,000 (prayer C)
  3. 3.Interest at court rates from date of judgment till full payment
  4. 4.Costs of the petition to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment Act, 2007Section 8
  • Employment Act, 2007Section 10(5)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42
  • Employment Act, 2007Section 43(2)
  • Evidence ActSection 107
  • Fair Administrative Action ActSection 4
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2020; [2010] LLR 255 (ICK) (September, 2013)
  • George Muteti v Express DDB Kenya
    [2015] eKLR
  • Carole Nyambura Thiga v Oxfam
    [2013] eKLR
  • Kenya Union of Domestic Hotels, Education, Institution and Hospital Workers v Baba Dogo Catholic Church School
    [2018] eKLR
  • Joseph Mwaniki Nganga v United Millers Limited
    [2022] eKLR
  • British Leyland UK Ltd v Swift
    (1981) I.R.L.R 91
  • Walter Onuro Ogal v Teachers Service Commission
    Cause No 955 of 2011
  • Antony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (employment dispute; petitioner sued by petition)

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, "Mutua v CFAO Motors Kenya Limited (Employment and Labour Relations Petition E065 of 2023) [2024] KEELRC 221 (KLR)", Case Analysis (2024). Petition dated 4th April 2023 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/221/eng@2024-02-09

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