DICKSON CHAHENZA ADEYA V TOTAL SECURITY SURVEILLANCE LTD [2012] KEELRC 107 (KLR)
The bottom line
#A Kenyan security firm fired an employee on probation grounds after his probation had expired, without a hearing, and paid him 12 months' salary.
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 dismissal of the claimant by the Respondent was justified.
- 2.If not, what remedies the claimant is entitled to.
Key legal issues
#Whether the dismissal of the claimant was justified
The dismissal was unfair and wrongful. The claimant's probation had expired by the time of termination, making him a permanent employee, and he was terminated on grounds of poor performance without a performance appraisal report and without being given a hearing.
The claimant was employed on 22nd November 2010 on a 3-month probation, later extended by 3 months to 3rd July 2011. By the dismissal on 13th August 2011 he had worked 8 months and had been admitted to the employees' medical scheme, and was paid one month's salary in lieu of notice like permanent employees. No performance appraisal report was produced, and no hearing was afforded, contrary to Section 41(1) of the Employment Act 2007 and ILO Recommendation 119.
What remedies the claimant is entitled to
Having found the termination unfair and wrongful, the court awarded 12 months' salary as compensation, a certificate of service, and costs of the suit.
The court exercised its discretion to award the equivalent of 12 months' salary (Ksh.540,000/= at Ksh.45,000/= per month) for the wrongful termination, together with a certificate of service and costs to the claimant. The remaining heads of the claim totalling Ksh.6,294,250/= were not granted.
Legal principles established
#- An employer must, before terminating employment on grounds of misconduct, poor performance or physical incapacity, explain the reasons to the employee and afford the employee a hearing as required by Section 41(1) of the Employment Act 2007.
- An employee whose probation has expired without termination becomes a permanent employee and cannot be dismissed as one on probation.
Court orders
#- 1.Payment of 12 months' salary for wrongful termination, equivalent to Ksh.540,000/=.
- 2.Claimant to be issued with a certificate of service.
- 3.Respondent to pay costs of the suit.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Industrial Court of Kenya, Cause 442 of 2012 (employment dispute under the Employment Act 2007)
Relief refused
#Claim of Ksh.6,294,250/= as enumerated in the statement of claim
The court awarded only 12 months' salary (Ksh.540,000/=) plus a certificate of service and costs, not the full amount claimed.
Costs
Respondent will pay costs of this suit.
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.
For all purposes and intend, the claimant was now a permanent employee, having not been notified of the intention to terminate him on 3rd July, 2011.
The end result is that a decision was made to terminate him without the appraisal being done as expected and without giving him a hearing.
Given this scenario, I find that the dismissal of claimant by Respondent was unfair and wrongful.
I therefore find for claimant and order that: 1. He be paid 12 months’ salary for wrongful termination. This is equivalent to: Ksh.540,000/= 2. Claimant should also be issued with a certificate of service. 3. Respondent will pay costs of this suit.
Issues in the judgment
#The judgment states the initial probation period 'was to end on 22nd February 2010' although employment commenced on 22nd November 2010, an apparent typographical error for 2011; the same passage refers to an extension letter dated 7th March 2011 'with effect from 3rd April, 2011', which is inconsistent with the stated end date.
The memorandum of response is stated to have been filed on 4th May 2017, which post-dates the judgment date of 17th December 2012 - an apparent typographical error in the year.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DICKSON CHAHENZA ADEYA V TOTAL SECURITY SURVEILLANCE LTD [2012] KEELRC 107 (KLR)", Case Analysis (2012). Cause 442 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/107/eng@2012-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.