Fixed term is an albatross around neck

The February 17 Court of Appeal judgment on a civil case involving Transparency International-Kenya and Teresa Carlo Omondi leaves a lot to be desired by employees as regards fixed-term contacts, non-renewal, initiation of the exit interview and exit from the workplace.

This is a bad law and can’t fly for long. It hangs like an albatross around the neck of fixed-termed employees, who give their best to their employers only to be shown the door when the timer stops ticking.

The judgment should be appealed on the basis of contradictory usage of severable and voidable terms in contracts; we enjoy, espouse and have constitutionally protected fair labour relations rights. 

It’s common knowledge that employment relationships are based on contract law, mostly on mutual terms and rarely ‘hot air’. It also cannot be lost on us that statutory employment laws and labour principles don’t exist in vain.

These have been developed over time and provide balanced, fairest and minimum terms of guidance and supervision of employment relationship engagements. Due process must be reasonably and rationally undertaken, especially to accord protection to the weaker party in an employment relationship.

In this case, the contract expressly and textually, by colour, context and texture promised renewal or extension on good performance if there was no redundancy in the position.

The citation: “TI-Kenya is pleased to offer you employment as the Deputy Executive Director/Head of Programmes for a period of two years. This employment is effective 1st October 2010 and ends 30th September 2012. Further extension of this contract shall be subject to satisfactory performance and ongoing requirement of your services by TI-Kenya.”

Assured job security

It is not by design or mistake when a would-be employee places reliance on this clause and gives their all, blood and sweat, to current engagement in the hope of assured job security while bypassing other best, fair and favourable job opportunities.

Conscientiously, at the workplace, where performance appraisals have been reported as positive, employment termination simply on the basis of effluxion of time, and without any explanation of proximate and reasonable reasons, ought to be voidable.

Declared null and void on the basis of non-fulfilment of legitimate expectation and the outright lack of a fair justification for the suggested forced employment termination and exit.

For clarity and interpretation of job contracts, and for practicality, terms that equivocally provide legitimate expectation ought to be left out, for they may serve no purpose in deriving maximum benefits, performance and utility from employees.

Slipping away from the doctrine of legitimate expectation, the judge-made law has lost its balance and, from birdlore, an employee may wish not to be yoked and run with an albatross around their neck.

Dr Mundia, a lawyer and maxillofacial surgeon, is the deputy national chairperson, Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU). [email protected].