Joseph Wanjohi Wambugu v Paws Africa Safaris Limited [2018] KEELRC 2510 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing an employee for poor performance without a hearing or chance to respond is unfair and compensation is payable.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was lawful and fair
The termination was unlawful and unfair; the Claimant was evaluated and condemned for poor performance without being involved or given a chance to explain himself.
Poor performance is a recognized ground for termination under the Employment Act but a procedure must be followed, including an objective performance review and time to improve. Here the Respondent evaluated the Claimant's performance and drew adverse conclusions without involving him, met in his absence both in April and May 2010, and terminated him without any hearing. The Court therefore found the procedure unlawful and unfair and held the Claimant entitled to compensation.
Whether the salary reductions were consensual
The 25% reduction was known to and acquiesced in by the Claimant, but the 50% reduction was unilateral and reversed; salary at termination fixed at Kshs. 82,500.
The Respondent produced letters signed by other employees agreeing to a 25% reduction, witnessed by the Claimant as General Manager, making his professed ignorance untenable. The 50% reduction, however, was not shown to have been consented to and was a unilateral decision. Reading the contract, the salary was subject to statutory deductions notwithstanding the claim of a net salary.
What remedies the Claimant is entitled to
Six months' salary compensation, three months' notice pay, 26 days' May 2010 salary, certificate of service and costs; arrears/underpayment figures to be tabulated by counsel on the 25% basis; breach of contract damages disallowed.
Compensation was assessed at six months' salary taking into account length of service and the Respondent's conduct in the termination process, plus contractual notice pay. Claims for arrears and underpayment survived only to the extent of the unilateral 50% reduction, with figures to be jointly tabulated by counsel. The general damages claim for breach of contract had no foundation and was disallowed.
Legal principles established
#- A verdict that an employee is a poor performer must be preceded by an objective performance review and the employee must be allowed reasonable time to improve.
- Termination without giving the employee a chance to explain himself is unlawful and unfair.
- A unilateral reduction of an employee's salary is impermissible and will be reversed.
Court orders
#- 1.6 months' salary in compensation for unfair termination (Kshs. 495,000)
- 2.3 months' salary in lieu of notice (Kshs. 247,500)
- 3.Salary for 26 days in May 2010 (Kshs. 71,500)
- 4.Advocates for the parties to jointly tabulate within 14 days the applicable figures on salary arrears and underpayment based on the allowable 25% salary deduction
- 5.Award subject to statutory deductions and to attract interest at court rates from date of judgment until payment in full
- 6.Claimant entitled to a certificate of service and costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wang’ombe v Mawingu Networks Limited (Cause E048 of 2022) [2024] KEELRC 126 (KLR)[2024] KEELRC 126 (KLR)30 Jan 2024
Cite this brief
#Cite this brief
Caselaw, "Joseph Wanjohi Wambugu v Paws Africa Safaris Limited [2018] KEELRC 2510 (KLR)", Case Analysis (2018). Cause No 705 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2510/eng@2018-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.