Denis Mwenda Gitonga v Ernest & Young LLP [2018] KEELRC 529 (KLR)

Section 45(2) requires the employer to prove a valid and fair reason. The termination letter cited no reason. Performance appraisals for 2015 and 2016 rated the claimant 3 out of 5, with the supervisor noting he met expectations despite health challenges. The only medical evidence was a pathologist's desk review of records, who admitted a neurologist would have been better placed, and the respondent never engaged an independent medical officer to examine the claimant. The burden under sections 43(1), 45(2) and 47(5) was not discharged.

Section 41 obliges the employer to explain the reasons for contemplated termination and to hear the employee's representations. The termination letter gave no details of the alleged discussions, RW4 attributed them to RW3, RW3 denied discussing termination, and RW2 admitted discussing termination only with the claimant's wife. No hearing or representations were allowed, so the procedure was unfair.

Section 5 of the Employment Act prohibits discrimination. However, the court found the employer acted on performance grounds using an appraisal system applied uniformly to all employees. A rating of 3 out of 5 followed by termination did not evidence differential treatment; the medical scheme extension and token payment further indicated no discriminatory animus. The claim was therefore narrowed to unfair termination.

Under section 49(1)(c), the court considered the claimant's 23 years of service and absence of misconduct contributing to termination, awarding 12 months' gross salary of Kshs. 3,761,292. Bonuses lacked legal or contractual justification; service pay was barred by section 35(6) because the claimant belonged to a pension scheme and NSSF; general damages for discrimination were dismissed with the finding that there was none. A certificate of service under section 51 was granted as prayed.