Ian Edwards v Bytes Technology Group Kenya Limited [2017] KEELRC 1759 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for poor performance without written proof and fair procedure is unfair, awarding seven months' salary.
What this practically means
#Executive summary
#Key legal issues
#Proof of reasons for termination under section 43 of the Employment Act
The respondent failed to discharge its evidentiary burden; no termination letter or documented performance reviews were produced
Section 43(1) requires the employer to prove the reason for termination, failing which the termination is deemed unfair under section 45. The respondent alleged poor performance and incompetence but exhibited no termination letter stating those grounds; the unsigned separation agreement gave no reason. Despite the witness's claim of constant communication on performance, no correspondence was produced.
Compliance with section 41 procedural fairness (notice and hearing)
The respondent did not comply with section 41(1) and (2); the claimant was ambushed at a meeting and not given advance notice
Section 41 requires notification and hearing before termination on grounds of poor performance. The respondent sent a delegation to terminate the claimant's services yet exhibited no advance notice of that intention. No minutes of the meeting were filed, and the claimant denied the meeting was called to discuss his dismissal. Telephone discussion of performance issues did not satisfy the statutory procedure.
Whether two years was a reasonable period to assess poor performance
Two years was a short time to set up a company in a foreign market and attain profitability, especially where the employee used his own funds
The court considered the context: the claimant was a foreign national establishing a new Kenyan operation without the promised investment from head office, often spending his own money. Against that backdrop, two years was too short a period to judge the business unsuccessful and the employee poorly performing, undermining the employer's asserted reason for termination.
Entitlement to commission
No commission was payable as payment was discretionary and dependent on actual sales, which were negligible
The respondent pleaded and the claimant's contract provided that commission or incentive payment was within the sole discretion of the Board of Directors and dependent on actual sales. The claimant made negligible sales below the commission threshold, so no commission was earned.
Legal principles established
#- An employer claiming termination for poor performance must prove the reason for termination; failure renders the termination unfair under section 45 of the Employment Act
- An employer must exhibit documentary proof (such as a termination letter, notice and correspondence) of the reasons and procedure for termination
Court orders
#- 1.Declaration that the termination of the claimant's services was unfair within the meaning of section 45 of the Employment Act
- 2.The respondent shall pay the claimant USD 86,912 being seven months salary as compensation for unfair termination of services
- 3.The compensation sum shall be subject to taxes and statutory deductions
- 4.Each party to bear their own costs
- 5.The motor vehicles still in the claimant's possession be returned forthwith to the respondent in good and mechanical condition subject to normal wear and tear, failing which the respondent may recover the same or their monetary value
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act (memorandum of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ian Edwards v Bytes Technology Group Kenya Limited [2017] KEELRC 1759 (KLR)", Case Analysis (2017). Cause Number 60 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1759/eng@2017-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.