- Muthee said the company did not notify Employees whether their contracts would be renewed. Employees worked past their contract’s expiry dates. The contracts would be renewed, well past the expiry date.
- On July 29 2015, he was issued with a letter of termination of employment.
Image: FILE
Mark Muthee was employed as a Cameraman and Producer of Rai RadioTelevisione Italiana in November 2010.
He worked on periodic contracts, which he states, were always renewed.
The latest was dated 6th January 2015. He last earned a monthly salary of Sh306,495.
His last contract was to run from January 5, 2015, to June 30 2015. He continued to work, until 29 July 2015.
Muthee said the company did not notify Employees whether their contracts would be renewed. Employees worked past their contract’s expiry dates. The contracts would be renewed, well past the expiry date.
On July 29 2015, he was issued with a letter of termination of employment.
He was not given reason or notice. He was told that the Respondent did not intend to renew his contract.
He told the court he had worked for 5 years, without any complaints from the company about his competence and integrity.
The media house in its defence said it was not under any obligation to renew any of the successive contracts.
It also said it did not have any obligation to notify Muthee of its intention to renew the contract.
It revealed that since Muthee was charged with stealing from the company’s property before his contract expired, they lost trust and confidence in him. Muthee had been charged with stealing Shs. 109,000, at Kibera Law Courts, Nairobi.
The company’s Head of Bureau at Nairobi, and Muthee’s boss, Vicenzo Nucci, was a Witness in the criminal proceedings. On page 16 of the proceedings, he stated :
"I dismissed Mark [Claimant] at the end of June. He continued to work for 27 days… I dismissed him because he was arrested."
But Muthee was acquitted on January 9, 2021, with no case to answer and there was no justification therefore to dismiss him based on the criminal charge.
The Judge in awarding him said the reason for dismissal because he was charged was not a valid or fair one.
“Being charged in a criminal case did not justify dismissal. The company had an obligation to convene disciplinary proceedings and establish that Muthee was guilty of an employment offence,” the judge said.
The Judge ultimately declared that the non-renewal and termination of Muthee’s contract were unfair and unlawful.
“If a contract has been renewed on 9 consecutive occasions, with the Employee discharging a function which is core to the Employer’s business in continuity for over 5 years, why should the Employee not reasonably expect renewal on the 10th occasion?” he posed.
The media house will now have to part with Sh5 million as compensation to Muthee.
New Law
The Labour Court has recommended the amendment of the Employment Act to cushion employees hired on fixed-term contracts.
Justice Rika said it is not forbidden to roll over a contract when a fixed-term term has expired.
"It is also not against the law to renew an expired contract once or twice upon expiry but it is questionable when an expired contract is renewed on 9 occasions and renewal declined on the tenth occasion, for no other reason, other than that it has expired," he said.
“An employee who works under 9 fixed-term contracts, over 5 years and is refused renewal on the tenth occasion is most likely a victim of unfair labour practice.”
To remedy the flaw, the Judge said it is necessary that the Employment Act 2007 is amended to expressly state, ‘that failure to renew a fixed-term contract may be deemed to amount to unfair termination’.
“There is a need for legislative intervention, on the law relating to a legitimate and reasonable expectation of renewal of fixed-term contracts of employment,” he said
The purpose of such legislative intervention will be to give support to the constitutional concept of fair labour practices.