Grace Mediva Asamba v Africa Apparels EPZ Limited [2016] KEELRC 1544 (KLR)
The bottom line
#Kenyan employers cannot fire staff for poor performance without written records of set targets, proof of support given, and fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Validity of termination on grounds of poor performance
The termination lacked a valid and justifiable reason as the Respondent failed to demonstrate records of performance targets, support mechanisms given to the employee, or notice based on a documented poor performance record
Section 41 of the Employment Act requires an employer, before terminating for poor performance, to explain the reasons to the employee with a fellow employee or union representative present. Beyond procedure, where targets are set the employer must produce the record and show efforts made to support the employee. The Respondent produced no record of how the 150-pieces-per-hour target was set relative to comparable employees, and relied only on verbal warnings. Poor performance is a serious allegation carrying a duty to support the employee, which the Respondent failed to discharge.
Compensation for the unexpired term of a fixed term contract
The claim for the unexpired term was declined because the Claimant was paid one month's notice, which under a fixed term contract terminable by 28 days' notice made the unexpired-term claim a double payment
The Claimant's fixed term contract was due to expire in about a month and was terminable by either party on 28 days' notice. Since she was terminated and paid one month's notice pay, claiming additionally for the unexpired term would amount to double payment. Compensation for the unfairness of termination is instead addressed under Section 49 of the Employment Act.
Quantum of compensation for unfair termination
Two months' pay in compensation was awarded under Section 49 of the Employment Act, computed on the contractual salary
Upon finding no genuine cause for termination, the court applied Section 49 of the Employment Act and found two months' pay appropriate. The court scrutinised the payslip and the fixed term contract to determine the correct monthly salary, noting the gross terminal payment of Kshs. 18,807.15 included notice pay and leave days, and computed the award on the due salary.
Legal principles established
#- It is not sufficient for an employer to simply allege poor performance; the employer must produce records of set targets, show the support given to the employee, and issue notice based on the documented poor performance record before termination can be justified
Court orders
#- 1.Judgment entered for the Claimant in the sum of Kshs. 23,058.00 being two months' pay as compensation for unfair termination
- 2.The claim for payment for the unexpired term of the fixed term contract declined
- 3.No costs awarded as none was claimed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Mediva Asamba v Africa Apparels EPZ Limited [2016] KEELRC 1544 (KLR)", Case Analysis (2016). Cause No. 1438 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1544/eng@2016-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.