Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 1422 of 2012· [2014] KEELRC 937 (KLR)

John Ratemo Ondieki v Islamic Relief World Wide [2014] KEELRC 937 (KLR)

Industrial Court of Kenya
8 April 2014
2,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court ruled an employer cannot fire staff over a rushed, one-sided performance appraisal, awarding the employee Kshs. 1 million.

What this practically means

#

Executive summary

#
The Claimant, employed as a Logistics Officer in Wajir on contracts running from August 2011, claimed unfair termination of employment and terminal dues. His employment was terminated by letter dated 27th March 2012 with effect from 1st April 2012, citing failure to meet basic logistical needs and poor performance following a logistics audit conducted between 16th and 18th March 2012 while the Claimant was on leave, coupled with an end-of-probation appraisal conducted in his absence. The Respondent maintained that the inspection and appraisal were proper and that a hearing was afforded. The Court, applying sections 41, 43 and 45 of the Employment Act, 2007, held that the employer bore the burden of proving a valid reason and fair procedure. It found the appraisal stage-managed for a collateral purpose, since it was brought forward from its contractual due date of July 2012 without explanation and the Claimant was not given a participatory appraisal or an objective forum to challenge his supervisor's conclusions. The alleged shortcomings were untested because the underlying policies and documents were not produced in court. Applying prior Industrial Court authorities, the Court held that an employee must be given an opportunity to improve over a reasonable period (2-3 months) once poor performance is noted, and that an appraisal process compromised by the employer siding with the supervisor cannot ground disciplinary action. The Court found the termination unfair for want of substantive justification and procedural fairness, awarded the Claimant nine months' salary (Kshs. 900,000) in compensation and one month's salary (Kshs. 100,000) in lieu of notice, together with a certificate of service, costs and interest, subject to statutory deductions. Claims for gratuity and NSSF dues were dismissed for want of evidence.

Key legal issues

#
01

Validity of the reason for termination

Holding

The Respondent failed to establish a valid reason for termination; the alleged shortcomings remained at the level of allegation because the underlying policies and documents were not produced in court.

Reasoning

The termination letter cited poor performance following a logistics audit and appraisal conducted while the Claimant was on leave. The appraisal was brought forward from its contractual due date of July 2012 without explanation, leading the Court to find it stage-managed for a collateral purpose. None of the policies or operational documents referred to in the inspection report were produced, so the shortcomings were untested allegations. The employer therefore failed to discharge its burden under sections 43 and 45 of the Employment Act.

p. 5
02

Procedural fairness of the appraisal and termination

Holding

Both the inspection and the appraisal were undertaken outside the parameters set by law; the process was not participatory and the Claimant was denied an objective forum to challenge his supervisor's conclusions.

Reasoning

The inspection was conducted in the Claimant's absence while he was on leave and the appraisal form was completed without a meeting between the Claimant and his supervisor. When the Claimant objected to the appraisal conclusions, the Human Resource Coordinator and Country Director engaged in shuttle diplomacy instead of facilitating a joint meeting. Citing prior authority, the Court held that a credible appraisal must be participatory and that taking the supervisor's side without allowing the employee to question the conclusions compromises the process.

p. 5
03

Proper procedure where poor performance is noted

Holding

Once poor performance is noted, the employee must be told of the shortcomings and given a reasonable opportunity to improve, which the Court considers 2-3 months to be.

Reasoning

Following the authority in KSRITAWU vs Stanley Kinyanjui and Magnate Ventures Ltd, the Court reiterated that an employee whose poor performance has been noted must have the shortcomings pointed out and a reasonable length of time, in the Court's opinion 2-3 months, given to improve. The Respondent gave no such opportunity, terminating the Claimant within days of the disputed appraisal.

p. 4

Legal principles established

#
  • The employer bears the burden of proving the reason for termination, failing which the termination is deemed unfair
  • Where an employee and supervisor disagree on a performance appraisal, the employer must provide an objective forum to resolve the grievance
  • An appraisal process where the employer sides with the supervisor without allowing the employee to question the supervisor's conclusions cannot ground disciplinary action

Court orders

#
  1. 1.Award of 9 months' salary (Kshs. 900,000) in compensation for unfair termination
  2. 2.Award of 1 month's salary (Kshs. 100,000) in lieu of notice
  3. 3.Total award of Kshs. 1,000,000
  4. 4.Claimant entitled to a certificate of service
  5. 5.Respondent to pay the costs of the case
  6. 6.Award to attract interest at court rates from the date of the award until payment in full
  7. 7.Award subject to statutory deductions in accordance with Section 49(2) of the Employment Act, 2007

Authorities

#

Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 49(2)

Cases cited (2)

  • Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) Vs Stanley Kinyanjui and Magnate Ventures Ltd
    Industrial Court Cause No. 273 of 2010
  • Jane Wairimu Machira Vs Mugo Waweru and Associates
    Industrial Court Cause No 621 of 2012
Jurisdiction invoked
Jurisdiction of the Industrial Court over employment and labour relations disputes (first-instance unfair termination claim)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Ratemo Ondieki v Islamic Relief World Wide [2014] KEELRC 937 (KLR)", Case Analysis (2014). Cause No. 1422 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/937/eng@2014-04-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.