Njoka v Bata Shoe Company Limited (Cause 1106 of 2016) [2022] KEELRC 4149 (KLR)
The bottom line
#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 Claimant was constructively dismissed by the Respondent
- 2.Whether his contract was unfairly terminated
- 3.Whether he merits the remedies sought
Key legal issues
#Constructive dismissal through unlawful extension of probation
The Claimant was constructively dismissed; the Respondent's unilateral, repeated extensions of probation and failure to confirm or terminate created an environment showing the employer was no longer willing to be bound by the contract
The contract provided for a 6-month probation. The Respondent extended it twice unilaterally, exceeding the statutory maximum with no written agreement from the Claimant as required by clause 15 and Section 42(2) of the Employment Act. After the third extension ended on 12th November 2015, the Respondent neither confirmed nor terminated the Claimant, who worked on for months while being denied benefits tied to confirmation. Following Coca Cola v Ligaga, this conduct led a reasonable employee to believe the employer would not be bound by the contract, justifying resignation as constructive dismissal.
Remedies for unfair termination
Compensation of 2 months' salary granted rather than the pleaded 12 months, given the Claimant's 18 months of service
The court found the pleaded combination of 12 months' compensation plus general damages for the same violation excessive. Considering the Claimant's 18 months of service and his expectation of confirmation to a term-indefinite contract, an award equivalent to 2 months' salary (Kshs. 102,000) was deemed appropriate, alongside conceded dues for 4 days' leave and 4 days' salary worked, and the Certificate of Service.
Legal principles established
#- A probationary period may not exceed 6 months and may only be extended by not more than 6 months with the employee's agreement
- Unilateral, prolonged and uncommunicated extension of probation beyond the contractual and statutory period, without confirmation or termination, justifies a finding of constructive dismissal
Court orders
#- 1.It is declared that the Claimant was unfairly, constructively and unlawfully dismissed by the Respondent
- 2.The Respondent shall pay to the Claimant 4 days' salary in annual leave at Kshs. 7,846
- 3.Salary for 4 days worked in March 2016, at Kshs. 7,846
- 4.Compensation for unfair, constructive and unlawful termination equivalent of 2 months' salary at Kshs. 102,000
- 5.Certificate of Service to be released to the Claimant by the Respondent forthwith
- 6.Costs to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; Employment Act 2007 (Sections 35(6), 42(2))
Relief refused
#General damages for unfair and unlawful termination (beyond the 12 months' compensation head)
Awarding both 12 months' compensation and general damages for the same violation would be excessive; instead 2 months' compensation awarded
House allowance for 18 months at Kshs. 137,700
Claimant was housed by the Respondent within the workplace
Overtime for 18 months at Kshs. 91,800
No evidence of authorized excess hours worked
Service pay at Kshs. 38,250
Claimant was subscribed to N.S.S.F and contributions were remitted
Accrued annual leave of 28 days
Contract entitled 25 days; only 4 days conceded by the Respondent was proven
Costs
Costs to the Claimant.
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.
It is declared that the Claimant was unfairly, constructively and unlawfully dismissed by the Respondent.
The Respondent shall pay to the Claimant 4 days' salary in annual leave at Kshs. 7,846; salary for 4 days worked in March 2016, at Kshs. 7,846; and compensation for unfair, constructive and unlawful termination equivalent of 2 months' salary at Kshs. 102,000.
At the time he resigned, he was justified in feeling that the Respondent was no longer willing to continue being bound by the contract between the Parties. Resignation quite easily, fitted the characterization of the concept of constructive dismissal.
Section 42[2] of the Employment Act, allows for probationary period of not more than 6 months. The period may be extended for a period of not more than 6 months, with the agreement of the Employee.
It was not shown by the Respondent, that extension of the probationary period in March 2015 and in August 2015, was with the agreement of the Claimant. Variation of the contract, could only be done through a written agreement, signed by the Parties, under clause 15 of the contract.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoka v Bata Shoe Company Limited (Cause 1106 of 2016) [2022] KEELRC 4149 (KLR)", Case Analysis (2022). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4149/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.