John Ratemo Ondieki v Islamic Relief World Wide [2014] KEELRC 937 (KLR)
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
#Key legal issues
#Validity of the reason for termination
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.
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.
Procedural fairness of the appraisal and termination
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.
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.
Proper procedure where poor performance is noted
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.
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.
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.Award of 9 months' salary (Kshs. 900,000) in compensation for unfair termination
- 2.Award of 1 month's salary (Kshs. 100,000) in lieu of notice
- 3.Total award of Kshs. 1,000,000
- 4.Claimant entitled to a certificate of service
- 5.Respondent to pay the costs of the case
- 6.Award to attract interest at court rates from the date of the award until payment in full
- 7.Award subject to statutory deductions in accordance with Section 49(2) of the Employment Act, 2007
- 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.