[2015] KEELRC 272 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT&LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1390 OF 2013

JOYCE KABURA NJENGA……….............................CLAIMANT

VERSUS

KENYA WOMEN FINANCE TRUST………….........RESPONDENT

JUDGMENT

The Claimant filed her suit on 29th August 2013. She averred that she was employed as an Insurance Manager on 4th June 2012 a position in grade 5 of the Respondent’s structure. She averred that she was on probation for 6 months and this could be extended to 9 months with her concurrence. She averred that upon confirmation the contract was to run for 3 years and was renewable by mutual agreement of the parties. The Claimant averred that she was not given a clear job definition and roles and was instead instructed to use her expertise to structure her rile definitively as hers was a new position within the Respondent. The Claimant averred that she was proactive and diligent in her capacity and to secure confirmation developed a project – Bank assurance for KWFT and various schemes which she submitted to the Respondent for approval and adoption. She averred that she was orally instructed by the Respondent’s Managing Director to implement the recommendations of the proposal and come up with solutions to aid in hastening the implementation process. She averred that she immensely contributed to the improvement of the Respondent’s financial position. She gave particulars of her achievements such as the credit life scheme which gave the Respondent profit share as well as Kshs. 20 million deposits, risk combination for GPA WIBA, cutting costs on premium, clearing of the debit balance with brokerage firm AON. The Claimant averred that she worked with diligence and dedication for her entire probation period and that as no notice of extension of probation was given she assumed that upon expiry of probationary period on 4th December 2012 her 3 year contract was impliedly confirmed. The Claimant averred that her services were terminated on 31st December 2013 past the probation term. At the time of termination her salary was Kshs. 217,375/-. She averred that her termination was unfair, without any indication whatsoever and that the refusal to confirm her employment was actuated by her supervisor’s malice. She gave particulars of the malice and these were falsely accusing her of having sexual relations with the general manager, taking advantage of her expertise by misleading the Claimant by promising permanent employment and thereafter terminating her contract after the projects stabilized, falsely accusing her of being rude and aloof. The Claimant averred that the failure by the Respondent to serve a termination notice 7 days before the probation was to lapse translated to the Claimant’s probation having not been terminated. The Claimant averred that the lapse of probation without notice to terminate gave the Claimant legitimate expectation that she would serve the full contract and hopefully extend it and enjoy the benefits she was entitled to such as the Kshs. 1. 5 million car loan and club membership valued at Kshs. 600,000/-. She thus sought the declaration that the termination of her contract was unlawful and against the rules of natural justice and contrary to the provisions of the Constitution and the Employment Act 2007; compensation for unfair termination of employment being 12 months salary Kshs. for three years contract duration Kshs. 2,608,500/-*3 = Kshs. 7,825,500/-; damages for the unfair and unlawful dismissal; any award the Court may deem just to grant; certificate of service; and costs of the claim.

The Respondent filed a Memorandum of Reply in 11th October 2013 and in the reply averred that the Claimant is not entitled to damages or any other entitlement as alleged by the Claimant in her memorandum of claim. The Respondent averred that the Claimant was to serve a 6 month probation that would only be extended at the sole option of the Respondent after an appraisal would be conducted and confirmation would be dependent on satisfactory reports from referees provided, satisfactory vetting report, satisfactory performance progress during the probation period and discretion of the management of the Respondent. The Respondent averred that the Claimant was never confirmed after the probation period. The Respondent denied that the Claimant was instructed to use her expertise to structure her role and that the position the Claimant held was a new position within the Respondent. The Respondent averred that it knew nothing of any special skill or expertise apart from what was engaged during the interview and the process of hiring the Claimant. The Respondent denied that the Claimant was proactive and diligent in her capacity and that the Claimant did not secure her confirmation and was a non-performer. The Respondent averred that the Claimant could not asses herself and that it was dissatisfied with her work and disengaged her lawfully and paid what was due to the Claimant. The Respondent denied that the Claimant negotiated for skills and funding and that she immensely contributed towards sustainably improving the financial position of the organization. The Respondent averred that the contract was terminated during the probation period and in accordance with the Employment Act and contract. The Respondent denied that upon the lapse of the probation duration, without notice of termination or extension as per the contract, the Claimant assumed the 3 year contract was impliedly confirmed. The Respondent averred that such an argument is against the law, the contract and against public policy and legal logic. The Respondent averred that the Claimant was entitled to Kshs. 154,900/- basic salary together with gratuity and car allowance. The Respondent averred that the Claimant’s services were lawfully and validly terminated on 28th December 2012. The Respondent averred that the appraisal process was objective, fair and open and that no one participant could singlehandedly disqualify her during appraisal. The Respondent averred that at termination the Claimant was only entitled to the balance of leave days, gratuity, one month salary in lieu of notice less statutory deductions made. The Respondent thus sought the dismissal of the Claimant’s suit with costs.

On 18th June 2014, the Respondent filed a list of Documents which included the copy of probation appraisal, termination letter, final payments declaration form and certificate of employment. The Respondent contemporaneously filed a list of witnesses together with their witness statements. In a Ruling rendered on 18th June 2014 I struck out the Respondent’s List of Documents filed on 18th June 2014 and ordered a fresh list be filed within 7 days of the Ruling.

On 22nd October 2014, the Claimant was led in her testimony by her advocate Miss Makori. She testified that she holds a Bachelor Degree (Statistics) from Catholic University and a post graduate degree in Actuarial Science from Nairobi University and is Certified in General Insurance. She stated that she was previously employed by the Respondent as a researcher and left on her own volition to join Jubilee Insurance and later returned in 2012 as the insurance head of the Respondent. She testified that she signed the contract on 4th June 2012 and that she was employed as the Insurance Manager and that this was a new position. She testified that she was to serve the Respondent and bring insurance income and reduce premiums for the Respondent. She stated that she was able to reduce expenses and gain income and that she succeeded in her role. She testified that she started working on 20th June and that the relationship was cordial and not social. She testified that she was not aware of any problems with her supervisor and was not told of her performance being below par. She testified that on 28th December after resuming from Christmas she was terminated. She stated that the HR manager called her and advised that the Claimant was not successful in her undertaking at probation and so her services were being terminated. She testified that she filled the appraisal form and sent it to her supervisor via email. She continued serving as usual until she was called by her supervisor. She testified that he reprimanded her and asked her to sign the appraisal and she stated that they had to sit and have a discussion and seeing how he was she proposed that they reschedule. She testified that she never got a hearing and never saw the comments he had made till she saw the document with HR. She denied seeing the appraisal form exhibited by the Respondent. She denied being informed of the use bad language. The Claimant testified that the termination letter made reference to discussions she did not have. She testified that the reason given for the termination was that she had not performed. She stated that she was employed on 18th June 2014 and as of 18th December 2014 she assumed she had been confirmed. She testified that subsequent to the termination she has sought employment without success. She stated that her career which she had built for 17 years was watered down and that it was discretion which was used to declare her unfit. She required to be checked by someone else and one person ran her down. She thus sought that the prayers in her suit be granted.

In cross-examination by Mr. Kithi, the Claimant testified that she previously worked for the Respondent from May 2009 till July 2011 and that she left and later returned in June 2012 and served till December 2012. She testified that she terminated her contract at Jubilee and was not terminated from employment. She testified that the hours were not conducive as she was a single mother. She testified that the review period was from 20th June as her employment was from 20th June 2012. She testified that she filled the appraisal form and emailed it to the supervisor. She could not recall when she filled the form. She stated that it is not what would be used to confirm employment. She testified that the conditions for confirmation included satisfactory progress during the probationary period and discretion of management. She was shown the appraisal form and stated that it has a place for performance rating and that she did not rate herself and did not include any comments. She testified that she was to comment and did not have any discussion with the employer and no meeting took place. She testified that she expected to be confirmed and was not aware of a confirmation though it was past the date for confirmation. She testified that she had not received communication and that she was confirmed after 18th December. She testified that rating was quantitative and she would give herself a 4 or 5. She testified that the department is up and running and other products are also up and running and that she reduced the premiums and deposits. She stated that her performance was high and assessing herself, she did very well. She testified that she received payment of Kshs. 331,000/- from the Respondent to cover her gratuity, days worked and one month pay. She confirmed that she signed for it. She testified that she sought a deferment of her commencement date and that she received the letter of 27th December 2012 on 28th December 2012. She conceded that she did not attach the full appraisal form.

In re-examination by Miss Makori, the Claimant testified that she saw the form for the first time in the HR office and it was given by the Manager Human Resource. She testified that the period of probation could only be extended with her concurrence. She stated that the appraisal refers to a meeting and there was no meeting during the appraisal. She testified that the letter of termination could not be undone and the letter specified that termination was effective 31st December 2012.

The Respondent called 2 witnesses who testified on 17th March 2015 and 27th May 2015. Mr. Busiega appeared for the Respondent. The 1st witness for the defence was Benson Kariuki Gitau who was the Finance Director of the Respondent. He testified that in 2012 a position for Insurance Manager came up as the insurance portfolio was growing. He testified that the duties of the Insurance Manager were to ensure all insurance claims are processed through the insurance agency and the Respondent’s insurance policies are renewed appropriately. The recruitment was done after the interview and the Claimant was appointed and given a contract of service. He testified that the Claimant had a 6 month probation period and if successful on probation would be confirmed. He testified that the Claimant’s confirmation was dependent on the satisfactory reports being received and performance. He stated that he was to take the Claimant through the performance appraisal. He stated that the appraisal is filled by the appraisee then the supervisor indicates their comments and the appraisee is called and issues are discussed and agreement reached. He testified that the Claimant filled the form and he also filled his section and made comments. The period of review was 20th June to 20th December. He testified that in his comments he indicated that there were areas the Claimant had carried her duties well and some areas she did not perform well. He stated that her communication with other staff was very poor and she was targeting other departments not in her area of work. He testified that before he took the appraisal form to the next level he called the Claimant and they had a sitting. He stated that unfortunately she left the sitting and refused to sign the appraisal form. He testified that once she walked out he had no option but to send the appraisal without her signature. He testified that she was not happy with the issues about her conduct and that he forwarded it to the second supervisor the Managing Director Mwangi Githaiga. He stated that Mr. Mwangi went through the appraisal and referred it to Manager HR to take action. He testified that the Claimant was not new to the organization and had worked in the marketing department. He stated that she interfered with the department and was warned about it. He recommended that she did not fit the position and the final decision was that her services be terminated. He testified that she signed the documents for the release of her dues and in the last section the document indicated that she had no other claim and she signed against that. He stated that she was given a certificate of employment.

In cross-examination by Miss Makori, he testified that he was employed in 1992 and had served for 23 years. He stated that he was the immediate supervisor of the Claimant and had given a narration of the appraisal prior to confirmation. He testified that he had a meeting with the Claimant and the appraisal process was concluded when the second supervisor made his comments. He stated that one of the processes is sitting down with the appraisee and that they did not agree between him and the appraisee and where there is disagreement you clearly mark it that you disagreed. He was referred to the appraisal and stated that he did not indicate anything and that he decided to forward it the way it was to the second supervisor. He stated that the contract ran from 20th June and probation was for 6 months and that probation was to be over on 20th December 2012 and an additional extension of 3 months is allowed. He testified that the probation was to lapse on 20th and that the appraisal process was to be finalized and decision made. He stated that was not a grey area. He stated that the contract provides that one must work for 6 months then a review is made and notice to extend or dismiss is made. He testified that the Claimant was within probation and had not started serving the 3 years contract. He stated that one of the problems was the Claimant’s interference with marketing and that he had referred to the problems she had with the other managers. He stated that he had been there for 23 years and not many people had left on his account and that he did not make the final decision. He testified that he did not recommend for her confirmation. He stated that the internal memo to the Claimant was one of the reasons for the decision and that it did not require for the memo to be signed by the Claimant. He testified that the Claimant did not perform as required and she did not perform as required.

In re-examination by Mr. Busiega, he testified that he did not have any personal differences with the Claimant. He stated that it was hard to push through insurance business with a manager who was in conflict with others. He testified that the Claimant did not satisfactorily carry out the duties. He stated that both of them were supposed to indicate if they are in disagreement and that the appraisal would be one sided if he filled that and she did not. He testified that the process of appraisal was undertaken after probation which was for 6 months. He stated that he completed the part of his appraisal fully and that her benefits were fully paid.

The Respondent called Jackson Ngure Wanjau the General Manager in charge of Human Resources. He testified that the Claimant joined the Respondent as Insurance Manager on 18th June and she requested in writing that she starts on 20th June. He testified that the Claimant’s performance was to be progressively appraised and after 6 months she was to be confirmed if successful. He testified that she filled the appraisal form on 7th November 2012. He stated that an employee is given an appraisal tool which is the employee is to fill and give the supervisor and after discussion if there is disagreement the appraisee is to indicate the ratings not agreed then sign. The Claimant filled the appraisal form but gave ratings and no justification. He testified that the Claimant gave an incomplete form which was disregard of the appraisal process. He stated that he was notified of this and he told the Claimant to complete the form and then raise issues of disagreement and this was not done. She was to discuss the appraisal between 17th and 19th December. He testified that the dispute was on the ratings and during probation the Claimant had shown disrespect. He referred to a memo given to the MD and he was copied in and confirmed that the Claimant had on 2 occasions come late to work. He testified that he was called at 11. 00am and informed that the Claimant had not reported to work and had not indicated by text or through a phone call why she was late. He stated that during probation, areas are monitored and these are technical competence, HR relations, skills, supervision skills and quality of work. He testified that the Claimant did not satisfy those requirements. He stated that the Claimant wrote a memo which went to a senior manager without going through her supervisor and this showed disrespect for her seniors. He stated there was lack of interpersonal skills. He testified that the Claimant was paid her dues and she was given a certificate of service and she indicated that she had no more claims.

In cross-examination by Miss Makori he testified that the dispute arose after the appraisal form came up. He stated that the Claimant should have stated there was a dispute and that the form provided for appraisee to state if there was a rating not accepted. He testified that he told her to state what she was disagreeing with. He stated that the appraisal form was incomplete and the Claimant refused to sign it and that the appraisal form gives one a window to agree or disagree. He advised the Claimant to follow due process and fill all the parts and she failed to do so. He denied that there was discretion by one person. He confirmed that the Claimant was hired competitively.

In re-exam he stated that the second supervisor did not make comments and sought the advice of HR. He testified that there was no personal difference reported to him and the delay in completing the appraisal process was caused by the appraisee who frustrated the process. That marked the end of oral testimonies.

Parties were to file submissions and the Claimant filed submissions on 15th June 2015. She reiterated her claim and submitted that the Claimant’s probation was not extended and her contract was thus confirmed. She relied on the case of Acrat Gilamichael Woldergabriel v Five Forty Aviation Limited [2015] eKLRwhere Nduma J. held that it is trite law that once a specified probationary period has expired and the same is not immediately extended in writing the employment of the affected employee is deemed to have become one on permanent terms. The Claimant submitted that the Respondent erred in terminating the Claimant’s services without following the laid down procedure under Section 41 Employment Act. The Claimant submitted that the process adopted by the Respondent was grossly unfair and placed reliance on the case of Elijah Ochieng Achoch v National Police Service Commission & 2 Others [2013] eKLRwhere Mbaru J. held that the Court must establish that the process adopted by an employer is fair and reasonable viewed in the perspective of the constitutional safeguard under Article 41.

The Respondent reiterated the pleadings, the respective testimonies adduced and its defence and submitted that the issues were whether the Claimant was ever confirmed to her 3 year contract and whether she is entitled to compensation for unfair termination of employment. The Respondent submitted that the Claimant was required to fill the appraisal form and after comments by supervisor is to indicate what parts she disagreed with. The Respondent submitted that the Claimant was disrespectful to her supervisors. Reliance was placed on the case of Abraham Gumba v Kenya Medical Supplies Authority [2014] eKLRto the effect that the Claimant was disobedient. The Respondent also relied on the case of Sarah Wanyaga Muchiri v Henry Kathii & Another [2014] eKLRin which Abuodha J. cited with approval the case of British Leyland UK Ltd v Swift [1981] 1 RLR 91on reasonableness. The Respondent submitted that the issue of confirmation was not automatic and relied on the case of Dinah Musidarwezo v African Women’s Development and Communication Network (FEMNET) [2012] eKLR. The Respondent submitted that it was trite law that in deciding disputes it is the Court’s duty to give effect to the intention of parties. Reliance was also placed on the cases of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLRand Eldo City Limited v Corn Products Kenya Ltd & Another [2013] eKLR. The Respondent cited a legal treatise Chitty on Contracts volume 1 27th Edition General Principles Part 1 and cited page 50 on the intention of parties to a contract.

In coming to the decision the Court has taken into account the pleadings and documents filed, the evidence on record and the submission of parties as well as the authorities cited.

In this case, it is not disputed that the Claimant was employed by the Respondent in June 2012 and commenced work on 20th June 2012 and that her employment was terminated by letter dated 27th December 2012 which set the effective date of termination as 31st December 2012. The Claimant asserts that the position she held with the Respondent was automatically confirmed upon expiry of the probation period. The Respondent on its part states the probation was unsatisfactory and the termination followed and that it was procedural.

The Claimant was to be appraised and to this end filled the appraisal form sometime in November and forwarded it to her supervisor the Respondent’s 1st witness. It is clear that the form was improperly filled as no ratings were given and reasons for the ratings. The Claimant was subsequently called for a meeting to discuss this appraisal and she was adamant in her refusal to sign it. One of the 13 universally implied terms of a contract is that the employee will cooperate with the employer. In this case it appears that the employee did not cooperate with the employer in respect to her appraisal. She could have indicated disagreement with the appraisal or indicated on the form that she wished to have another appraisal done. Merely refusing to sign did not accord her the safeguard she was looking for in having the appraisal redone. The Claimant had options she did not exercise. By signing she would not have been confirming agreement with appraisal as her comments could be captured to show her dissatisfaction.

It would appear from the facts in this case that the employer exercised its prerogative to terminate and acted fairly because of the Claimant’s failure to cooperate. The upshot of the foregoing is that the suit is unmerited and I dismiss it but make no order as to costs.

Orders accordingly.

Dated and delivered at Nairobi this 1stday of October 2015

Nzioki wa Makau

Judge