In a landmark decision, the Court of Appeal in Gogni Rajope Construction Company Limited & Another v. Cornel Otieno Omondi (Civil Appeal No. 321 of 2019) has declared Section 45(3) of the Employment Act, 2007, unconstitutional. The Court reaffirmed the High Court’s holding in Samuel G. Momanyi v. Attorney General & Another [2012] eKLR which had similarly declared the provision unconstitutional. This provision previously limited claims for unfair termination to employees who had worked for a minimum continuous period of thirteen months. The ruling strengthens protections against unfair dismissal, ensuring all employees, regardless of tenure, are entitled to due process.
Background
The respondent, Cornel Otieno Omondi, was employed as an Assistant Projects Engineer under a two-year contract starting January 2012. By a letter dated 24th July 2012, he was sent on compulsory leave and later dismissed on allegations of misconduct without a proper disciplinary hearing, leading to claims of unfair dismissal. The Employment and Labour Relations Court (ELRC) found that although the employer had valid and justifiable reasons for terminating the respondent’s contract, due process was not followed, violating Section 41(2) as read together with 45(2)(c) of the Employment Act. The respondent was awarded compensation. On appeal, the employer argued that since the respondent had worked for only six months, Section 45(3) barred him from claiming unfair dismissal as he had not worked for 13 months.
Court of Appeal’s Decision
The Court of Appeal upheld the ELRC’s ruling and found that:
• Procedural Fairness: While the employer had valid and justifiable reasons for termination, the due process was not followed as required under Section 41 as read together with Section 45(2) of the Employment Act.
• Unconstitutionality of Section 45(3): The court reaffirmed the High Court’s reasoning in Samuel G. Momanyi v. Attorney General & Another [2012] eKLR, which held that the 13-month service requirement was discriminatory and violated the constitutional right to fair labor practices.
• Inconsistency with the Constitution: The court ruled that Section 45(3) of the Employment Act is not aligned with the best labor practices and contradicts various Articles of the Constitution, including: Article 27 (equality before the law), Article 41(fair labor practices) and 48 (access to justice).
Implications for Employers & Employees
• All employees, regardless of tenure, can now claim unfair termination if due process is not followed.
• Employers must adhere strictly to termination procedures under Sections 41 and 45 of the Employment Act, regardless of an employee’s length of service.
• Employers must ensure that termination complies with statutory procedures, even where misconduct is established.
• The decision reinforces constitutional labor rights, ensuring greater protection for short-term and probationary employees.
Conclusion
The Court of Appeal’s decision marks a significant development in employment law in Kenya. It underscores the need for employees to ensure compliance with fair termination procedures and aligns statutory provisions with constitutional guarantees. Employers should review their employment policies to ensure compliance with fair termination procedures.
This alert serves the purpose of general guidance and is not intended to constitute specific legal advice. For legal advice concerning this alert, please contact our Partner George.Muchiri@CMS-DI.com.
*Contributors
•George Muchiri - Partner, Head of Employment & Pensions
•Wambui Kariuki - Associate
