Rono v Delish Nail and Beauty Limited (Cause E038 of 2023) [2024] KEELRC 2472 (KLR)

The Respondent asserted mutual separation but led no credible evidence; the final dues certificate did not indicate the mode of separation. RW1's testimony was contradictory on whether the Claimant resigned, was a poor performer, or was issued a show cause letter (which was never produced). The Claimant, having served 2 months and 3 weeks of a 3-month probation, was dismissed without termination notice and without a hearing. Relying on Monica Munira Kibuchi, probationary employees are entitled to the Section 41 procedural safeguards, so the dismissal was unfair.

The court considered the abrupt, demeaning and unexplained nature of the dismissal, the fact that the Claimant was head-hunted and resigned from previous employment, and his inability to secure comparable employment since. Weighing these factors against his short service of 2 months and 3 weeks, the court deemed 4 months' salary sufficient compensation.

The Claimant was evidently not given the 7 days' termination notice applicable to probationary contracts. Although RW1 testified that pay in lieu of notice was included in the final dues of Kshs 148,041, no proof was led in that regard. The court therefore found the claim merited and awarded Kshs 19,800.

Exemplary damages are generally not payable in breach of employment contract cases, and the circumstances here met none of Lord Devlin's three categories in Rookes v Benard. Damages for the unexpired term are not available under Section 49(4)(f) unless the contract expressly provides for them, which it did not; loss of earnings is capped at 12 months' salary in any event.