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ELRCAllowedCause No 22 of 2011· [2015] KEELRC 1268 (KLR)

Grace Atieno Onyango v St. Hannah’s Preparatory School Limited [2015] KEELRC 1268 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
6 March 2015
ANAbuodha J. N.
1,166 words in judgment
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The bottom line

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A Kenyan school was ordered to pay a teacher 10 months' salary for firing her over poor performance without evidence or a fair hearing.

What this practically means

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Executive summary

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The claimant, head of nursery and pre-unit at the respondent's school, was dismissed on 17th August 2009 on account of poor performance, said to rest on a 2004 assessment report noting declining performance affecting pupil enrolment. She claimed she received no warning, no notice to show cause and no hearing, and that her dues (August salary and one month's pay in lieu of notice) were never paid. The respondent asserted she had been given the report and sufficient time to improve, and that she declined the offered dues. The court held that in unfair termination claims it must assess whether a reasonable employer could justify the dismissal on the reasons given, and that termination must also follow fair procedure under the Employment Act and natural justice. It found no evidence the 2004 assessment report was prepared, shared or discussed with the claimant; its author was not called to testify. Declining enrolment could have resulted from competition from other schools and parental choice, and no pupil was shown to have left because of the claimant, whose earlier performance had been good. The dismissal was accordingly unfair under section 45 of the Employment Act. The court awarded one month's salary in lieu of notice (Kshs. 26,425.00), 7 days' salary for August 2009 (Kshs. 852.00), and 10 months' salary as compensation for unfair termination (Kshs. 264,250.00), plus costs of the suit and a certificate of service. Judgment was delivered at Nairobi on 6th March 2015 by Abuodha J. N.

Key legal issues

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01

Whether the reason for termination (poor performance/declining enrolment) was valid

Holding

The reason was not validly established: no evidence showed any child was removed due to the claimant's performance, and declining enrolment could stem from competition and parental choice

Reasoning

The court held that poor performance may be a function of several factors beyond an employee's control. The claimed drop in enrolment could have resulted from competition from other schools and parental choice, and no evidence was tendered of pupils lost due to the claimant. Her earlier good performance was corroborated by a certificate of appreciation. The termination was therefore unfair within section 45.

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02

Whether fair procedure under section 41 was followed

Holding

No fair procedure was followed: the assessment report was never discussed with the claimant and no hearing, warning or notice to show cause was given

Reasoning

The author of the 2004 assessment report (headmistress V. N. Ndehi) was never called to give evidence, and nothing on the report showed it was done in collaboration with the claimant. There was no record the report was shared and discussed with her, and no notice, warning or hearing preceded the dismissal, contrary to section 41(1).

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Legal principles established

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  • In unfair termination claims the court assesses the validity of the employer's reason objectively, without substituting its own view, and requires both valid reasons and fair procedure
  • Before terminating an employee for poor performance, the employer must explain the reasons to the employee in a language the employee understands, enabling the employee to respond
  • Poor performance may result from factors beyond the employee's control and is not necessarily a sign of incompetence

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of termination of Kshs. 26,425.00
  2. 2.Payment of 7 days salary for August 2009 of Kshs. 852.00
  3. 3.Payment of 10 months' salary as compensation for unfair termination of service of Kshs. 264,250.00
  4. 4.The claimant shall have costs of the suit
  5. 5.The respondent shall issue the claimant with a certificate of service

Authorities

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Legislation

  • Employment Actsection 41(1)
  • Employment Actsection 45
Jurisdiction invoked
Jurisdiction as the employment and labour relations court over claims of unfair termination under the Employment Act (sections 41 and 45)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Grace Atieno Onyango v St. Hannah’s Preparatory School Limited [2015] KEELRC 1268 (KLR)", Case Analysis (2015). Cause No 22 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1268/eng@2015-03-06

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