Ouma v Consolidated Bank of Kenya Limited (Cause 908 of 2017) [2024] KEELRC 1267 (KLR)
The bottom line
#Once a probationary period in Kenya expires without the employer confirming or extending it, the employee gets full unfair termination protections, including a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was still on a probationary contract at the time of termination
The claimant was no longer on probation at the time of termination; the extended probation expired on February 28, 2017 and there was no further extension or communication of unsatisfactory performance.
The dates of the extended probation were specific, ending February 28, 2017. The respondent ought to have communicated its decision before the last date. There was no evidence of any performance review after January 24, 2017, and no communication extending probation beyond February 28, 2017. The claimant worked the whole of March 2017 outside the probationary period, so he was not on probation on April 5, 2017.
Whether the termination was unfair
The termination was procedurally unfair because the claimant, no longer on probation, was entitled to a hearing under section 41 of the Employment Act and was not given one.
Having found the claimant was not on probation at termination, section 41 of the Employment Act applied, requiring notification of the allegations and an opportunity to be heard. The claimant was neither issued a notice to show cause nor granted a hearing. The termination was therefore unfair under section 41. However, the claimant's performance was genuinely unsatisfactory, which bears on remedies.
What remedies the claimant is entitled to
Nominal compensation of two months' salary (Kshs. 270,000) awarded; damages for unfair labour practice declined; 50% of taxed costs awarded.
Under section 49(4), the court considers length of service and the extent to which the employee caused or contributed to the termination. The claimant knew his performance was unsatisfactory as he had been placed on extended probation; the unfairness arose only from the employer's failure to communicate its decision upon expiry of the extended probation. Damages for unfair labour practice were not proved.
Legal principles established
#- An employer must communicate its decision on confirmation or termination before or immediately upon expiry of the extended probationary period; failure to do so means the employee is no longer on probation and is entitled to the protections of the Employment Act, including a hearing under section 41 before termination.
- Termination of an employee who is no longer on probation without a hearing is unfair under section 41 of the Employment Act.
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair (procedurally unfair under section 41 of the Employment Act)
- 2.Compensation of two months' salary in the sum of Kshs. 270,000 awarded to the Claimant
- 3.The Claimant awarded 50% of taxed costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act 2007; Article 41 Constitution of Kenya, 2010 invoked in submissions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ouma v Consolidated Bank of Kenya Limited (Cause 908 of 2017) [2024] KEELRC 1267 (KLR)", Case Analysis (2024). ELRC Cause (Nairobi), filed May 12, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1267/eng@2024-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.