George Kabue v Nokia Siemens Networks [2014] KEELRC 1421 (KLR)
The bottom line
#A Kenyan court ruled Nokia Siemens Networks unfairly fired an employee for poor performance because it had no evaluation evidence or proper hearing, awarding him over Kshs 7.2 million.
What this practically means
#Executive summary
#Key legal issues
#Whether termination on grounds of poor performance was with valid reason under Section 43 of the Employment Act
No valid reason was proved; the Respondent produced no evaluation results and the Performance Improvement Program form produced was blank
The Respondent alleged continuous poor performance over 12 months but its witness admitted under cross-examination that no pre-PIP evaluation, no review of the coaching, no feedback record and no evaluation between the warnings and termination existed. The PIP form produced was blank. The court therefore found no evidence of poor performance in the Respondent's materials.
Whether the procedure for termination complied with Section 41 of the Employment Act
The procedure was unfair; the Claimant was never subjected to any hearing, was not informed of his right to be accompanied or represented, and dismissal followed two warning letters without any evaluation
The Respondent's witness agreed the Claimant was never subjected to a hearing and was not informed of his right to be represented. Section 41 requires the employee to be informed of the intention to terminate, informed of the right to be accompanied, and allowed to make representations before the decision to dismiss. None of these steps was taken.
Entitlement to end of service indemnity under the employment contract
The contractual end of service gratuity applied to any non-mutual early termination, not only redundancy; with 5 years of service the Claimant was entitled to 45 days' salary per year worked
The contract provided for 45 days per year of service gratuity upon early termination by non-mutual agreement. The new contract with Nokia Siemens Networks assumed all accrued liabilities from the effective date, ensuring continuous employment. The Respondent's argument that the indemnity applied only on redundancy was rejected because redundancy is by definition involuntary, hence non-mutual, loss of employment.
Relevance of the 'range of reasonable responses' test relied on by the Respondent
The court accepted the principle but found it inapplicable because no evaluation results were ever presented
The Respondent cited Nazareno Kariuki for the principle that a court must not substitute its own views for the employer's but must ask whether a reasonable employer could have dismissed on the same facts. The court agreed with the principle but held it could not assist an employer that produced no evaluation results at all.
Legal principles established
#- Where poor performance is the reason for termination, the employer must demonstrate an appraisal of the employee's performance over a period with the employee's participation and no improvement
- The court does not substitute its views for those of the employer but tests whether the dismissal falls within the band of reasonable responses of a reasonable employer
Court orders
#- 1.Compensation for unfair termination awarded in the sum of Kshs.3,718,928.32 being 8 months gross salary based on the Claimant's July 2011 pay slip
- 2.End of service indemnity of 45 days salary per year worked awarded in the sum of Kshs.3,486,495.30 for 5 years of service
- 3.Noted that the certificate of service had already been issued to the Claimant
- 4.Respondent to pay the Claimant's costs; decretal sum subject to interest at court rates from date of judgment to date of payment in full
- Jurisdiction invoked
- Industrial Court jurisdiction over employment and labour relations disputes; Employment Act, Sections 41 and 43
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Kabue v Nokia Siemens Networks [2014] KEELRC 1421 (KLR)", Case Analysis (2014). Memorandum of Claim dated 27th January 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1421/eng@2014-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.