Collins Osoro Lukhale v AAA Growers Limited [2014] KEELRC 1314 (KLR)

The termination letter cited poor performance. Section 41 requires an employer, before terminating on grounds of poor performance, to explain the reasons to the employee in a language he understands with a representative present. The Respondent gave no hearing and inconsistently relied on sections 40 and 44 (redundancy and summary dismissal) while the letter was a termination for poor performance. Section 43 places the burden of proving reasons on the employer, which it failed to discharge.

Where a person is treated differently from others similarly situated on a specified ground, unfairness is presumed. However, the Claimant's salary was fixed by his own specific contract; he failed to identify which Asian employees left at 5pm; and he did not plead or particularise the alleged abusive language. The court could not infer discrimination on the evidence, though it admonished the Respondent to address any such practices under Article 27 and section 5 of the Employment Act.

Having found the termination substantively and procedurally unfair, the court awarded compensation equivalent to the last gross pay of Kshs.60,000 for twelve months under section 49(1)(c). Considering the two-year contract with ten months remaining, an additional Kshs.600,000 was awarded for loss of office. Other terminal dues had already been paid, and the discrimination claim failed, so only 50% costs were awarded with no interest.