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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 720 (KLR)

Amuhaya v African Medical and Research Foundation [2018] KEELRC 720 (KLR)

Employment and Labour Relations Court
2 November 2018
OMOnesmus N. Makau
1,983 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld the termination of a project director for poor performance, but awarded him notice pay, leave dues and pension because those were never disputed.

What this practically means

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Executive summary

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The Claimant was employed as Chief of Party on the APHIA plus IMARISHA project under a two-year fixed term contract running from 10.4.2012 to 9.4.2014, at a monthly salary of USD 8,100. The contract was terminated effective 1.7.2013 on grounds of poor performance. He sued seeking a declaration that the termination was unfair, two months' salary in lieu of notice, payment for 25 leave days, 17 off days and public holidays worked, twelve months' salary as compensation, pension dues, costs and interest. The respondent denied unfair termination, asserting the Claimant's poor performance (rejection of the project Work Plan, donor complaints, failure to attend key meetings) and that he was offered redeployment, a show cause letter and a hearing, all of which he declined. The court, framed two issues: whether the termination was unfair and whether the reliefs should be granted. Applying Sections 45(2) and 41 of the Employment Act, the court held that the respondent proved a valid and fair reason (poor performance admitted in writing by the Claimant) and that fair procedure was followed: the Claimant was appraised, given a show cause letter and invited to a hearing but deliberately declined to attend. The claim for 12 months' compensation and the declaration of unfairness were therefore refused. However, the court awarded the undisputed contractual dues: USD 16,200 notice pay and USD 7,788.461 for 25 leave days, totaling USD 23,988.461 with interest, and directed payment of pension dues per the Trust Deed and Rules. Costs were declined since the awarded claims were never disputed.

Key legal issues

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01

Whether the reason for termination (poor performance) was valid and fair

Holding

Yes - poor performance was proved on a balance of probability despite absence of a fresh appraisal immediately before termination.

Reasoning

Although there was no performance appraisal just before termination, the court noted the Claimant failed to improve on areas highlighted in the October 2012 appraisal (leadership, communication, management skills, relations with donors and government). He failed to attend crucial donor meetings, delayed executing duties and admitted some failures in writing and apologized. The court therefore found the reason valid and fair on a balance of probability.

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02

Whether the procedure followed was fair under Section 41 of the Employment Act

Holding

Yes - show cause letter issued and hearing invitations extended, but the Claimant deliberately declined to attend.

Reasoning

The court found the respondent complied with Section 41 by issuing a show cause letter dated 6.6.2013 and inviting the Claimant to a hearing with a fellow employee of choice. The Claimant declined to attend contending his fate was sealed. The court found the procedure complied with and rejected the argument that a warning letter was a prerequisite.

p. 3
03

Whether the contractual reliefs (notice pay, leave, pension) were payable

Holding

Yes - notice pay and accrued leave awarded as they were offered in the termination letter and never disputed; pension payable per Trust Deed and Rules.

Reasoning

The court awarded two months' salary in lieu of notice (USD 16,200) and 25 leave days (USD 7,788.461), noting these were offered by the termination letter and not disputed. The respondent alleged payment but the court doubted evidence of payment was shown; nevertheless the sums were due unless payment was confirmed before execution. Pension was admitted and payable under the scheme rules.

p. 3

Legal principles established

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  • Under Section 45(2) of the Employment Act, termination is unfair unless the employer proves both a valid and fair reason and a fair procedure.
  • Under Section 41, an employer must explain the reasons for termination to the employee in the presence of a fellow employee or union official of choice and accord them a chance to make representations before termination.
  • An employee who deliberately declines an invitation to a fair hearing cannot later complain that the procedure was unfair.

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of USD 23,988.461 being two months' salary in lieu of notice (USD 16,200) and 25 leave days (USD 7,788.461), plus interest from the date of the judgment.
  2. 2.Declaration that the termination was unfair refused; compensation for unfair termination refused.
  3. 3.Pension dues to be paid subject to the Trust Deed and Rules of the Pension Scheme.
  4. 4.No order as to costs - each party to bear own costs in effect.

Authorities

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Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Section 45 and Section 41 invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Amuhaya v African Medical and Research Foundation [2018] KEELRC 720 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/720/eng@2018-11-02

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