Summary of recent court decisions

Fixed-term contracts; Ombewa v Ezeetec Limited (Appeal E072 of 2022) [2024] KEELRC 776 (KLR) (28 March 2024) – Where a contract of employment is pegged to the life of a project carried out by the employer, it comes to an end with the end of the project. There is no reason for an employer undertaking such a project to go about notifying the employee and the Labour Office about an intended redundancy and the reasons and extent of redundancy. There is nothing to consult about because there are no steps the employer would be expected to take to mitigate the loss of employment beyond the life of the project. There is nothing to be paid as severance pay unless the contract of employment makes provision for such a benefit. The contract was defined as fixed-term and tied down to the life of the project hence no need to apply the redundancy process.

Grievances; Wamalwa v Sagemcom Kenya Limited (Cause 210 of 2020) [2024] KEELRC 688 (KLR) (28 March 2024)  – Although the Claimant alleged that the redundancy had not met the statutory requirements of Section 40 of the Employment Act, the court held that the Claimant had acquiesced the reason and procedure applied through an email he sent to the Respondent’s Managing Director. In the said email, the Claimant thanked the Respondent and offered himself for future service with the Respondent should the opportunity arise. He, thereafter, collected his redundancy cheque and was ready to move until almost 3 years after termination when he filed the claim for unfair termination in court. The court held that employees who are aggrieved by their employer’s decisions do not normally offer to work for the same employer in the future. In the court’s view, there was no grievance and the termination was executed through the consensus of the parties.

Investigations; Kilima v Centre for Rights Education and Awareness (Employment and Labour Relations Cause E842 of 2022) [2024] KEELRC 614 (KLR) (14 March 2024)  – Although it is important to allow an employee the opportunity to cross-examine his/her accusers, this is not compulsory at the investigation stage unless the employer’s policies provide for such a right. Failure by an employer to accord the employee this opportunity does not vitiate the results of the investigations. In the court’s view, the investigation stage is purely a fact-finding stage, which will eventually inform the decision on whether to invite the employee for a disciplinary hearing. It is at the disciplinary hearing that the employee should be granted the opportunity to cross-examine the accusers if he/she wants.

Ambiguous employment contracts; Kidero & 7 others v Shurie & 2 others (Cause 893 of 2017) [2024] KEELRC 539 (KLR) (8 March 2024)  – In this case, a clause in the employment contract provided that the contract was for a specified period. However, there were other clauses that provided that upon the Claimant’s confirmation, the Claimant would serve on permanent and pensionable terms. The employer argued that the contract was fixed-term while the Claimant argued that it was open-ended. The court tasked with determining whether the contract was fixed-term in nature or open-ended considered the ‘contra proferentem’ rule which states that an ambiguity in a contract is to be construed unfavourably to the drafter. Since Section 9 (2) of the Employment Act imposes an obligation on the employer to draw up the employment contract, the ambiguity in the contract was construed against the employer. The court held that the parties were not in a fixed-term contract, but rather were in an open-ended contract.

Constructive dismissal; Kilima v Centre for Rights Education and Awareness (Employment and Labour Relations Cause E842 of 2022) [2024] KEELRC 614 (KLR) (14 March 2024)  – Not every action by an employer that an employee finds undesirable will provide an employee with a justification to resign and plead constructive dismissal. The conduct must be one that would have pushed any other reasonable employee into considering resigning. In this case, the court held that it did not appear reasonable that an employee who is unhappy about a disciplinary process against her would throw in the towel even before exhausting the internal disciplinary process and plead constructive dismissal.

Resignation; Barae v Jesuits Fathers Registered Trustees (Cause 2501 of 2017) [2024] KEELRC 563 (KLR) (14 March 2024) – In determining whether an employee has effectively resigned, the test is whether a reasonable person would have understood the employee’s statements and actions to show the employee to have made a decision to end the employment relationship. In this case, when the Claimant was given feedback from her employer that she had contributed to the toxic work environment in her office, her response was that she was ‘opting out of working with the Respondent’. She later claimed to have been terminated. The court held that to a reasonable person, this was a clear and unequivocal statement that the Claimant wished to leave the Respondent’s employment. By failing to rescind the resignation, the resignation took effect.

Double jeopardy; Mbugua v Powermax General Electrical Merchants (Cause 1092 of 2018) [2024] KEELRC 620 (KLR) (14 March 2024) – The Claimant was surcharged Kshs. 7,000/= per month for what the Respondent referred to as dishonesty, misappropriation and underperformance. The court held that by surcharging the Claimant, the Respondent effectively extinguished the allegations made against her and the said allegations could not be used as a basis for any further disciplinary action against her. By using the same allegations as a reason for termination, the Respondent breached the rule against double jeopardy.

Disciplinary proceedings; Omboga v Mpesa Foundation Academy (Cause 1496 of 2018) [2024] KEELRC 685 (KLR) (28 March 2024)—The court held that it could not fault the Respondent because the decision to summarily dismiss the Claimant was made on the same day the Claimant was taken through a disciplinary hearing. There is no rule against fast and expeditious disposal of a disciplinary process.

Preissler & another v Daluga Investment Limited t/a Easygym Kenya & 2 others (Cause 309 of 2020) [2024] KEELRC 473 (KLR) (4 March 2024) – The court held that the disciplinary panel was not properly constituted as it only comprised the 2nd Respondent (the owner of the company) and the deliberations of the disciplinary panel could not amount to a fair hearing as it lacked diversity and independence. This was because 2nd Respondent was the accuser, witness prosecutor and the judge, all in one.

Omboga v Mpesa Foundation Academy (Cause 1496 of 2018) [2024] KEELRC 685 (KLR) (28 March 2024) – In this case, the allegations against the Claimant in the suspension letter were not the same as the allegations in the summary dismissal letter. The Claimant argued that the allegations that led to her dismissal were not communicated to her before the disciplinary hearing but were only introduced during the hearing. The court considered that the letter inviting the Claimant to the disciplinary hearing set out the allegations that were used to justify the summary dismissal. The court’s view was that the suspension letter was clear that the suspension was to enable the Respondent to carry out full investigations. Disclosures from the investigations would warrant an expanded list of charges which were communicated to the Claimant in the letter inviting her to the disciplinary hearing.

Researched and compiled by Advocate Fiona Tambo. For further advice on any matters raised, please feel free to contact Fiona.