Benard Juma Agutu v Maya Freight Limited [2012] KEELRC 59 (KLR)
The bottom line
#Kenya's Industrial Court ruled that employers cannot rely on hidden probation policies to sack workers without a hearing or proof of valid reasons.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the Claimant was unlawful and wrongful
- 2.If so, what would be the appropriate remedies
Key legal issues
#Whether the Claimant was serving on probation such that section 42 of the Employment Act applied
The Respondent failed to establish that the employment was subject to probation; the contract did not expressly provide for probation and the policy document was not shown to have been brought to the Claimant's attention
The contract made no express reference to probation. The Respondent relied on a staff handbook and Probationary Period Policy incorporated by reference, but the Claimant denied receiving them and the Respondent's witness was vague on induction. Drawing on section 11(4) of the Employment Act, the Court held that a probation clause must be expressly incorporated in one document and acknowledged by the employee.
Whether the termination was procedurally and substantively fair
Termination was procedurally unfair because the Claimant was not heard, and substantively unfair because the Respondent failed to prove valid and fair reasons; the failed booking was the act of the Claimant's senior
Section 42, which removes natural justice for probationary contracts, was inapplicable. Sections 43 and 45 required the employer to prove reasons. The loss was never brought to the Claimant's attention, no show cause letter issued, and the Respondent's witness conceded the booking was made by Morgan Cargo, with unchallenged evidence that the Claimant's senior, Mr Madharu, made the booking.
What remedies flow from the unfair termination
Compensation is discretionary and not automatic; two months' gross pay awarded under section 49(4) plus one month's notice pay, but overtime and reinstatement declined
Section 49 caps compensation at twelve months. Considering the parameters in section 49(4), the impracticality of reinstatement on an expired fixed term, the two weeks of service, and the Claimant's failure to disclose prior employment, the Court awarded two months' gross pay. Notice pay was granted as of right; the overtime claim failed for want of proof.
Legal principles established
#- A probationary clause is a cardinal provision of an employment contract and must be expressly incorporated in the contract document, not by reference or implication
- Where no probationary period applies, termination without a hearing is procedurally unfair, and the employer must prove valid and fair reasons under sections 43 and 45 of the Employment Act
Court orders
#- 1.Two month's gross pay in compensation in the sum of Kshs 69,000/-
- 2.One month's basic pay in lieu of notice in the sum of Kshs 30,000/-
- 3.The amount of Kshs 22,498/- already acknowledged as received by the Claimant to be deducted from the award
- 4.Claims for overtime and reinstatement declined
- 5.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Industrial Court of Kenya established under the Industrial Court Act, seized of an employment dispute under Cause 48 of 2011
Relief refused
#Reinstatement
The Claimant had served only two weeks and the two-year fixed term contract would already have expired, making reinstatement ineffective
Overtime (Kshs 4,600/-)
The Claimant did not adduce evidence enabling precise mathematical calculation of overtime hours and rates
24 months' salary and house allowance (Kshs 828,000/- of the total claim)
Section 49 caps compensation at twelve months; exercising discretion under section 49(4), only two months' gross pay awarded given short service and impracticality of reinstatement
Costs
No order is made as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a clause regulating the probation period of an employee is a cardinal provision of a contract and should be incorporated in the contract document expressly and not through reference or by implication
In any case it was not disputed that the Respondent did not give the Claimant an opportunity to be heard. In this regard the termination was unprocedurally unfair because the Claimant was not given an opportunity to be heard.
The Respondent failed to prove the reason(s) for the termination as required by section 43 of the Employment Act or that the reasons were valid and fair as required by section 45 of the Employment Act.
I therefore do find that the termination of the Claimant contract of employment was unlawful and he is awarded :
The claims for overtime and reinstatement are declined and no order is made as to costs.
Issues in the judgment
#The judgment states a cheque of Kshs 12,498/- was forwarded to the Labour Office, but the final orders direct deduction of Kshs 22,498/- already received by the Claimant
The Respondent's witness is recorded as conceding that the booking was done by Morgan Cargo on 14 November 2011, a date after the 16 November 2010 termination relied upon in the judgment
The judgment is signed by Justice Radido Stephen in Mombasa but delivered by Justice Nzioki wa Makau in Nairobi, though both are dated 14 December 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Juma Agutu v Maya Freight Limited [2012] KEELRC 59 (KLR)", Case Analysis (2012). Cause 48 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/59/eng@2012-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.