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It happens more frequently than you think. This article examines two cases on the subject.

The facts in FMM vs BCL [2018] eKLR were that;

  • The Claimant successfully applied for a job with the Respondent. The letter of offer was dated 14th October 2014;
  • According to the letter, the appointment was to take effect on 1st November 2014;
  • The Claimant accepted the offer in writing on 22nd October 2014;
  • The Respondent withdrew the offer on 31st October 2014, a day before the appointment was to take effect. The withdrawal was on the grounds that Claimant’s previous employer had written to the Respondent, revealing that the Claimant was a troublesome employee;
  • According to the letter of offer, the Claimant’s employment was subject to “… Information supplied by you prior to offer of employment being correct.”
  • The Claimant felt that the withdrawal was an unfair labour practice especially because he had resigned from a previous job on the understanding that he had secured a new job with the Respondent.

findingThe finding

On 6th March 2018, the judge held that a binding contract of employment was created the moment the Claimant signed the offer letter and the contract could, therefore, only be terminated as per the terms of the contract. The judge further stated that a probationary contract had been created and the Claimant was entitled to one months’ notice or pay in lieu of notice as per the terms of the contract. In addition, that by virtue of Section 42 of the Employment Act, the Claimant was not entitled to reasons of the termination since he was on probation.

Whilst I agree that a contract is formed the moment an offer is signed, I’m not in agreement with the finding that Section 42 of the Employment Act applies and, therefore, that no reasons were required. I will not delve into that because probation is not the subject of this post.

Statutory provisions

The judge relied on the following provisions of the Employment Act: –

Section 9(2) which places an obligation on an employer to draw up a contract stating the particulars of employment and Section 9(3) which requires an employee to signify consent and acceptance of the offer by signing the offer letter/contract.

Another case (TON vs BOA [2015]eKLR)

special

In an almost similar case decided in 2015, the presiding judge held that an employment contract is a special kind of contract which should not be looked at as any other contract. She held as follows:- –

“For an employee, employment is not only a source of livelihood but also part of their essence and purpose in life. It follows therefore that once one is offered a job, they of necessity make certain adjustments in their life in order to take up the appointment; the most obvious being resignation from their current employment, relocation and financial adjustment. These adjustments cannot just be wished away on the basis of change of mind by a prospective employer.”

In that case, the employee lied about his last employment as a result of which the employer rescinded the contract – there was, however, no evidence of communication of the rescission. It was proved at the hearing that he lied. The judge held that the employer was justified in rescinding the contract but since there was no evidence of communication of the rescission to the employee, the termination was unlawful and the employee was awarded 3 months’ salary as damages.

The judge did not, however, say anything about whether or not the employer ought to have followed the stipulated termination procedure.

Conclusion

To be on the safe side, collate all necessary information and documents and conduct all reference checks prior to making an offer of employment.

***THE END***

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About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for over 10 years. She is a repository junkie and a lover of editing.

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Comments

  1. Thank you for the matter in question but I have a question
    At what time an employer has a duty to conduct investigation on the behavior of an employee is it before granted and signing employment offer? or after reporting to the duty station? The similar case happened to my client and the law is silent.
    Anthony Oswald Kazikold (Labour lawyer)
    P.O.BOX 447 Nelson Mandela African Institution of Science and Technology
    Arusha
    Tanzania

    1. Anne Babu says:

      There is no duty on the employer to conduct any due dilligence, that is done by the employer purely to satisfy itself about the suitability of the employee. To be on the safe side, the investigations should be completed before the offer of employment is made.

  2. Juliet says:

    Hi Anne, thanks for this post. How about issuing an employment contract subject to satisfactory references and background checks? This is informed by the fact that a potential employee will not share contact details of their current employer if they have no bird in hand “signed contract”

    1. Anne Babu says:

      The first case discussed in this article had a similar clause and the court still upheld the position that the contract was created the moment the offer was accepted.

  3. Juliet says:

    Sorry I mean to add to my comment above, does this in any way influence the outcome of such a case.

    Juliet

  4. Veronica Kalekye Mutua says:

    Thank you so much Anne for this article which is very timely in ta present case that I refused to withdraw an offer letter a day to the person reporting. Now I can share the article!

    Kindly talk about a case where a mother on maternity leave is taken ill and admitted in ICU without her baby. The law says that such a leave is applicable after the maternity leave days expire. However, I think the mother can extend her maternity by the number of days she was sick if she has a doctor’s note. What do you think?

    1. Anne Babu says:

      If the mother falls sick then that should be taken as sick leave, subject to production of a doctor’s note.

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