[2023] KEELRC 3282 (KLR)

Ooko v Avacare Kenya Limited (Employment and Labour Relations Cause E787 of 2021) [2023] KEELRC 3282 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEELRC 3282 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Cause E787 of 2021

AN Mwaure, J

December 8, 2023

Between

Lawrence Ooko

Claimant

and

Avacare Kenya Limited

Respondent

Judgment

1. The Claimant filed a Memorandum of Claim dated 8th September 2021.

Claimant’s Case 2. The Claimant avers that on February 17, 2020, he was employed by the Respondent as a Senior Field Manager at a gross salary of Kshs 265,000 per month inclusive house allowance and 6% pension.

3. The Claimant avers that the contract was formalised on 23rd May 2020 on a 6-month probation period and he executed his duties with due diligence.

4. The Claimant avers that upon completion of the probation period, the Respondent illegally decided to unilaterally extend his probation period and embarked on quest to frustrate him by assigning his role and limiting his trips to Kisumu and Eldoret.

5. The Claimant avers that he still worked zealously evidenced by the fact that his team performed well and was ranked the best overall performer by the Respondent; on October 2020, he was ranked the 2nd best performing manager; and on November 2020 his team was ranked the best overall team performer by the Respondent.

6. The Claimant avers that on 18th January 2021, the Respondent issued him with a termination letter which cited the principal reason being non-performance.

7. The Claimant avers that the Respondent did not have a valid reason to terminate him as he had always carried out his duties with due diligence.

Respondent’s Case 8. In opposition to the Claim, the Respondent filed its response dated 22nd October 2021.

9. The Respondent avers that the Claimant was not performing his duties as required and was guilty of poor performance, false reporting and non-adherence to the company policies. On account of these matters, the Claimant’s probation was extended by three months pursuant to a letter dated 13th August 2020 signed and acknowledged by the Claimant.

10. The Respondent avers that the Claimant consented to the extension of his probation and was the one who requested to be position of a field manager.

11. The Respondent avers that the Claimant was issued with a termination letter for the reasons stated therein for which it has sufficient evidence.

12. The Respondent avers that the Claimant was responsible for supervising claims made by his juniors for payment of mileage. The Claimant submitted claims that had not been reviewed resulting in an overpayment of Kshs 6,000 to one, Jordanah Otieno.

13. The Respondent avers that the Claimant offered to resign from his job before he was terminated and prior to his termination, the Claimant lied to the Respondent that his phone had problems when in fact he had bought a new phone recently.

14. The Respondent avers that it had trouble tracking the Claimant as per the company policy as he refused to log on his location when required and when he did his location was different from what he was saying.

15. The Respondent avers that the Claimant is guilty of attempted theft by falsifying receipts in order to claim reimbursements from the Respondent.

16. The Respondent avers that the Claimant was paid his terminal dues which included notice pay and he signed the computation acknowledging the same.

Evidence in Court Claimant’s Case 17. The Claimant (CW1) produced his witness statement and list of documents dated 8th September 2021 as his evidence in chief and exhibits no 1-22 respectively.

18. During cross examination, he testified that he was a Senior Field Manager reporting to the Country Manager and two Field Managers reported to him and other staff. He used to approve reimbursements of the staff under him.

19. CW1 testified that at the time of his termination and during his employment the Respondent never conducted a management review.

20. CW1 testified that he was not invited for a meeting to review his performance on 7th August 2020, however, he was given an extension of probation vide a letter dated 15th August 2020 which he received and signed.

21. CW1 testified that he approved mileage summary of the staff; including the reimbursement of Kshs 6,000 which was an overpayment.

22. CW1 testified that after expiry of the further 3 months’ probationary period he was not invited for a renewal meeting until 18th November 2020 when he received the invite but he was not allowed to attend the meeting.

23. CW1 testified that he did not want to attend the meeting but he has no proof that he communicated the same.

24. CW1 testified that he did not request to step down from his position to a Field Manager on 15th September 2020, and he was to maintain his position as a senior Field Manager.

25. CW1 testified that there were no formal targets given to him by the Respondent.

26. CW1 testified that upon termination, the Respondent paid his dues as at that time and he signed the document on receipt of the money. He received a cheque of Kshs 369,796. 50, his salary was not as indicated but he understood the document he signed.

27. During re-examination, he testified that the letter dated 16th August 2020 refers to a meeting but he was not called for a performance appraisal even though the meeting was called.

28. CW1 testified the final dues computation referred to net salary and leave due. His salary was Kshs 250,000 so the payslip did not include all of it.

Respondent’s Case 29. The Respondent’s witness (RW1) Sani Dennis, is the Respondent’s Country Head. He testified that the Claimant was the Respondent’s employee from 17th February 2020 on 6 months’ probation which was extended for 3 months and another 3 months before his termination on 18th January 2021.

30. RW1 testified that he conducted meetings to review the Claimant’s performance. After the 6 months’ probation, he had a meeting with the Claimant on 7th August 2020 and the Claimant was issued a letter of extension dated 8th August 2020. The Claimant had targets to meet and his termination letter was clear.

31. RW1 adopted his witness statement dated 24th April 2023 and list of documents dated 22nd October 2021 as his evidence in chief and exhibits excluding the SMS which he expunged for lack of an electronic certificate.

32. During cross examination, RW1 testified that the Claimant was present in the performance appraisal held on 7th August 2020 and minutes were made but the same were not produced in court.

33. RW1 testified that the company has a reporting structure and there is mention of poor performance which evidence is on the document dated 19th November 2020.

34. RW1 testified that the Claimant did not adhere to the company’s policies. There was forged fuel receipts under exhibit on page 36 where client fuelled petrol at kayole petrol station.

35. RW1 testified that the after the expiry of the probation period, on 19th November 2020 a meeting whose minutes is titled ‘Lawrence performance meeting’ further extended the Claimant’s probation for 3 months.

36. RW1 testified its human resource did not participate in the meeting and the Claimant did not sign the minutes of the said meeting. Further, the Claimant signed a contract to extend the probation period but the same has not been produced in court

Claimant’s Submissions 37. The Claimant submitted that his contract commenced on 17th February 2020 and he was on probation for 6 months until 16th August 2020. RW1 testified that the probation period was extended for a further 3 months, however, during cross examination he could not explain how the meeting of 7th August 2020 took place and did not have evidence of the said meeting. RW1 could not also produce any evidence of poor performance, non-adherence to company policies and false reporting.

38. The Claimant submitted that the Respondent agreed that it further extended the probation period from 19th November 2020 to 22nd February 2021 and produced a document dated 19th November 2020 as evidence but could not explain why the Claimant’s signature was missing.

39. The Claimant submitted that section 42 (2) of the Employment Act is clear that a probationary period cannot be extended without the agreement of the employee. It is not in doubt that the document was not signed by the Claimant thus null and void.

40. The Claimant implored this court to hold that the probation period had lapsed and his employment was deemed confirmed by operation of the law. He relied on the case of Aysha Hafsa Musa v Computer Revolution Limited [2021] eKLR where the court emphasized:“19. In the case of Lucy Wangui Wanyika v Nam Consult Limited [2016] eKLR, Abuodha J. held as follows:“It is a conventional practice in contractual relationships that where parties conduct their dealings in writing, the same mode of interaction should so far as possible be retained for avoidance of confusion. The Claimant herein was appointed in writing hence it was only reasonable that any issue concerning her contract which had the possible effect of modifying or bringing to close the contractual relationship be done in the same manner. It is curious that whereas the respondent claimed that the extension of the probation period and communication over non- performance of the Claimant was verbal … in the circumstances, the Court finds that it was unreasonable to let the Claimant continue working beyond her initial probation period without clear and documented communication over the reasons for extension of the probation period and for how long the extension would be.”20. I agree with the finding above by Abuodha J. and that of Mbaru J. in the case of Lear Shighadi Sinoya v Autech Systems Limited as cited by the Claimant in her submissions. In that case Mbaru J. held that the probation period can only be extended by mutual agreement and that without extension, the employee’s services are deemed confirmed by operation of the law. Indeed, the duty is upon the employer to advice the employee when the probation period has lapsed. Where an employer allows the same to pass without any action, the employee stands confirmed. Section 42(2) is clear that the extension of a probationary contract is to be made “with the agreement of the employee”. In this case there is no agreement of the employee or a letter notifying the employee of the extension of the probationary period. I find that the Claimant was not on probation at the time of termination of her employment.”

41. The Claimant submitted that the Respondent failed to comply with the provisions of section 41 of the Employment Act rendering the termination procedurally unfair.

42. The Claimant submitted that substantive fairness has to be considered whether or not the Claimant was still on probation and relied on the case of Okumu v Good Man Agencies Limited (Cause 1895 of 2017) [2022] KEELRC 13514 (KLR) (9 December 2022) (Judgment).

43. The Claimant submitted that the allegations in his termination letter could have been responded to should the same have been issued with a warning letter, a notice to show cause and/or disciplinary hearing which was not done.

44. The Claimant submitted that the termination was unlawful and unfair and he should be awarded compensation.

Respondent’s Submissions 45. The Respondent submitted that the Claimant’s employment contract was probationary as it was for a duration of not more that twelve months and it met the requirement of the Act as it stated expressly it was a probation type of contract.

46. The Respondent submitted that it is alive to the law as espoused in section 42 of the Employment Act that probationary contracts cannot be extended for a period exceeding six months and that the extensions in respect to the claimant’s employment had not offended this provision of the law.

47. The Respondent submitted that it has provided sufficient evidence in support of the claim for extension of the probationary contract which was never rebutted by the Claimant.

48. The Respondent submitted that Section 42 of the Employment Act provides for termination of probationary contracts and this position is buttressed in the case of Danish Jalang’o & another v Amicabre Travel Services Limited [2014] eKLR where Justice Rika J observed:“There is no obligation under section 43 and 45 for employers to give valid and fair reasons for termination of probationary contracts, or to hear such Employees at all, little less in accordance with the rules of fairness, natural justice or equity. The termination of the probationary contract is strictly regulated by the terms of the contract. The only question the Court should ask, is whether the appropriate notice was given, or if not given, whether the employee received pay in lieu of notice; and, whether the employee was, during the probation period, treated in accordance with the terms and conditions of the probationary contract. The employee has no expectation of substantive justification, or fairness of procedure, outside what the probation clause and section 42 of the Employment Act 2007 grants. If the employee has received notice of 7 days before termination, or is paid 7 days’ wages before termination, there can be no further demands made on the Employer. If the Employee is advised termination is because the Employer feels there should be no confirmation, there can be no additional demands for substantive justification made on the Employer. The Employer retains the discretion whether to confirm, or not confirm an Employee serving under probation. The law relating to unfair termination does not apply in probationary contracts.The court continued to state as follows:Employees are not normally recruited at face value; there is a period of uncovering if they are fit for the job. Labour is flexible, and to have a strong, long term, and productive employer-employee relationship, the Parties must be allowed a period of learning each other. The probation law should be retained. Employers should retain a freehand in evaluating Employees’ suitability, ………..”

49. The respondent submitted that employees under probation are governed by the terms and conditions of the probationary contract. clause 11 of the employment contract provides for termination, the Respondent issued the Claimant with a termination letter dated January 18, 2021 clearly setting the grounds of termination and indicated 15 days’ notice starting January 18, 2021.

50. The Respondent submitted that the summary dismissal was procedural as the Claimant was heard and dismissed for theft of money from clients he was supposed to represent.

51. The Respondent submitted that the Claimant’s conduct in the cause of the probationary contract was against the expected code as on several occasions he produced forged fuel and parking receipts and gave false details on his whereabouts during fieldwork. The Respondent has placed before this court overwhelming evidence of the above which was never rebutted by the Claimant.

Analysis and Determination 52. The issues raised for determination are:a.Whether employment contract was probationary.b.Whether the Claimant’s dismissal from employment was procedurally unfairc.Whether the Claimant is entitled to the reliefs sought.

Whether employment contract was probationary 53. It is not in dispute that the Claimant was engaged by the Respondent vide an employment contract dated 23rd May 2020 with effect from 17th February 2020. Clause 2 of the contract provided for a probation period:“The company requires a period of six months’ probation, during which time the employee will be trained, guided and mentored in the culture and the specific work required to be done.Management will have a discussion with the employee at the end of each month of probation as to discuss any problems and/or training needed.If the employee struggles to understand and/or fit into the position as appointed the company will be required to assist and/or replace the employee.”

54. The probation period was to expire after six months however, vide a letter dated August 15, 2020 the Respondent extended the Claimant’s probation to a further 3 months to 14th November 2023.

55. In the case law relied by the Claimant, Aysha Hafsa Musa v Computer Revolution Limited [2021] eKLR the court held as follows with regard to extension of probationary period of an employee:“It is not in dispute that the Claimant was under a probationary contract for a period of three months from her effective date of employment on February 1, 2015. The Respondent was at liberty to extend the probation for a further three months which would be an aggregate of six months. The Respondent has however not brought before this Court any written communication of the extension of the Claimant’s probation.The provisions of section 10 and 13 of the Employment Act are abundantly clear in that the terms of an employee’s contract and any changes thereto must be in writing and must be with the consent of the employee. The Respondent has not provided any written communication of the extension of the Claimant’s probation before this Court.As such, in the absence of any written communication in this regard, the Claimant’s probation contract is deemed to have ended as at April 30, 2015. It was not enough for the Respondent to claim the Claimant verbally agreed to an extension of her probation during a meeting whose date is undisclosed either in the pleadings or in the evidence adduced in Court.”

56. The Claimant testified that there was no performance appraisal meeting held on August 7, 2020 as stated in the aforesaid letter, however, this beats logic as it is clear that he acknowledged the contents of the letter by signing on the letter and wrote ‘Thank you’. This signifies the initial extension was not unilaterally done by the Respondent.

57. RW1 testified that the Respondent held a meeting on November 19, 2020 whose minutes is titled ‘Lawrence performance meeting’ which the Claimant attended and was in agreement that probation period be extended for 3 months. RW1 was at pains to explain why Claimant did not sign the minutes of the said meeting if he was in attendance.

58. The Claimant testified that he received an email dated November 18, 2020 inviting him for the meeting but he did not attend the meeting.

59. RW1 further testified that the Claimant signed a contract to extend the probation period but the same was not produced in court.

60. Accordingly, this court holds that the respondent has failed to prove that the probation period further extended with the claimant’s knowledge and consent.

61. The respondent therefore altered the employment contract unilaterally by further extending his probation period for 3 months in breach of section 10 (5) of the Employment Act which reads:“Where any matter stipulated in an employment contract changes, the employer shall, in consultation with the employee, revise the contract to reflect the change and notify the employee of the change in writing.”

62. In Mwilo v Absa Bank (K) PLC (Cause 31 of 2020) [2022] KEELRC 53 (KLR) (5 May 2022) (Judgment) the court observed and held:“I reject RW-1’s allegation that there had been oral discussion on extension of the probationary period, and that the Claimant had requested for the same. The letter dated January 27, 2020 does not refer to any such oral discussions. In any case, a written contract of employment, or of whatever nature, cannot be said to have been varied and/or supplemented by an oral agreement, and in particular where one of the parties denies the alleged oral agreement. In the present case, the Claimant did not admit having been party to any oral discussion on the purported extension of his lapsed probationary period.I find and hold that the Claimant was not serving probationary period when his employment was terminated by the Respondent without notice vide a letter dated March 27, 2020. ”

63. In view of the foregoing, this court holds the Claimant was not serving a probationary contract as the alleged second extension on November 19, 2020 was not done with his written consent or knowledge and therefore the probation period had lapsed and his employment was deemed confirmed by operation of the law.

Whether the Claimant’s dismissal from employment was procedurally unfair 64. The Claimant attempted to rebutt the grounds of dismissal relied by the Respondent in the letter of dismissal dated 18th January 2021.

65. The Respondent produced in court evidence of alleged forged fuel and parking receipts in line with section 43 and 45 of the Employment Act.

66. However, there needed to be clear proof that there was forgery and other misdemeanours before action was taken. The Claimant’s submissions are that the dismissal was procedurally unfair as the allegations in the termination letter could have been responded to should the same have been issued with a warning letter, a notice to show cause and/or disciplinary hearing which was not done. In other words, he should have been accorded on opportunity to defend himself.

67. Section 41 of the Employment Act provides the procedure to be adhered to before termination of an employee’s employment as follows:“(1)Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.(2)Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.”

68. In any event even if an employee is on probation or not the employer must adhere to fair labour practices when dismissing or terminating him. In the case of Happiness Nyabonyi Maingu v Shreveji Chemical Limited [2020] eKLR the court held:“whereas, a probationary contract is a sort of “testing waters” engagement, the rights of the employee are not sacrificed. The employees remain entitled to the protection of the law from arbitrary and whimsical terminations by employers. For example, the law has put in place certain safeguard in favour of employees regardless whether they are employed under a probationary contract… in view of the foregoing, I reiterate that the obligation to justify the reason for terminating contract under section 43, 45 and 47(5) of the Employment Act applies equally to termination of probationary contract. Consequently, an employee as every right to challenge termination for probationary contract for want of substantive fairness.”

69. In the suit herein, the Claimant’s termination was procedurally unfair by dint of the Respondent failing and/or denying the Claimant an opportunity to defend himself against the allegations raised against him.

70. Further, the termination letter was instant in nature as it was without notice hence in breach of Section 41 of the Employment Act. Accordingly, the Claimant’s dismissal from employment was unlawful and unfair.

71. Flowing from the pleadings, submissions and evidence adduced the court finds the claimant’s termination from his employment was not fair and procedural hence judgment is entered in his favour.

72. As per the prayers by the claimant the court finds it fair to award the following:1. One-month salary in lieu of notice kshs 250,000/-2. Claimant worked for respondent for less than one year and one month compensation is reasonable as per section 49(4)(e) of Employment Act.He is awarded is 250,000/-. Therefore kshs 500,000/- is the total award plus interest at court rates from date of judgment till full payment.3. He is also entitled to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 8TH DAY OF DECEMBER, 2023. ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE