Stephen Juma Wafula v Firefox (K) Limited [2018] KEELRC 879 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for poor performance without a fair hearing is unlawful, and a signed discharge won't protect the employer.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was lawful and fair
Substantively and procedurally unfair; no capability hearing under Section 41 and no evidence Claimant was required to resume duty on 16th January 2017
The termination letter cited poor performance, which is a legitimate ground but requires a set procedure: the employee must be pointed out shortcomings and given an opportunity to improve, and be subjected to a capability hearing under Section 41 of the Employment Act. The Court found no evidence of any such hearing or of a valid requirement to resume duty on 16th January 2017, the warning letter making no mention of the suspension. Termination was therefore both substantively and procedurally unfair.
Effect of the discharge executed by the Claimant on 8th March 2017
The discharge does not bar the claim; no discharge can cure an unlawful termination
The Respondent relied on a discharge executed by the Claimant stating he had no further claims. Following this Court's jurisprudence (Simon Muguku Gichigi v Taifa Sacco and Duncan Mwirigi Ariithi v Jhpiego Kenya), the Court held that a discharge cannot cure an unlawful termination of employment, and proceeded to award compensation notwithstanding the discharge.
Quantum of remedies
Three months' salary awarded as compensation; contractual salary claim and leave pay refused
In assessing compensation the Court considered the Claimant's length of service (about one year) and the Respondent's conduct in effecting the termination, awarding three months' salary (Kshs. 68,448). The claim for salary for the remainder of the contract lacked a legal basis and was dismissed, and the leave claim was abandoned at trial. Costs followed the event with interest on the award.
Legal principles established
#- No form of discharge can cure an unlawful termination of employment
- Termination for poor performance requires pointing out shortcomings and giving the employee an opportunity to improve over a reasonable period, plus a capability hearing under Section 41 of the Employment Act
Court orders
#- 1.Judgment entered in favour of the Claimant in the sum of Kshs. 68,448 being three months' salary in compensation for unlawful and unfair termination of employment
- 2.The award to attract interest at court rates from the date of judgment until payment in full
- 3.Claimant awarded costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Juma Wafula v Firefox (K) Limited [2018] KEELRC 879 (KLR)", Case Analysis (2018). Memorandum of Claim dated 22nd March 2017 (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/879/eng@2018-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.