Sosphita Abdalla Kisanya v Intex Construction Co Ltd [2018] KEELRC 2545 (KLR)
The bottom line
#A Kenyan court ruled Intex Construction unfairly sacked its driver for poor performance without notice, hearing, or fixing his faulty truck, awarding him over Kshs.595,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was unfair
The termination was wrongful, unfair and unlawful - no valid reason was established and the mandatory procedural safeguards under section 41 were not followed
The respondent asserted poor performance but failed to demonstrate what measures were taken to address it. Section 41 required a show cause notice setting out the performance deficiencies and a hearing at the shop floor in the presence of a representative of the claimant's choice. None was done. Further, the claimant's vehicle had unaddressed mechanical defects reported to supervisors, rendering him unable to perform. The employer cannot rely on underperformance it caused through failure to repair the vehicle.
Whether the employer discharged the high burden of proof for termination on grounds of poor performance
The employer failed to meet the burden; it did not show any performance evaluation policy or measures taken to address poor performance
Following Jane Samba Mukala v Ol Tukai Lodge Limited, where poor performance is the reason for termination, the employer bears a high level of proof. It must show an employment policy or practice measuring good against poor performance, the measures taken to address poor performance, and a hearing before termination. The respondent only issued a warning and did not demonstrate any evaluation system or supportive measures, and did not appear at the hearing to prove its case.
What remedies flow from the unfair termination
Compensation of ten months' gross salary, notice pay, salary for 18 days worked, with leave and gratuity to be computed and confirmed; severance pay and rest days claims declined
Compensation is due under section 49 of the Employment Act. The claimant had worked under three separate terms, and in the last phase for less than 3 years, so ten months' compensation was found appropriate and fair. Notice pay follows procedural unfairness under section 35 at the gross amount inclusive of house allowance. Leave could only accrue for the last phase and severance pay under section 40 did not apply since there was no redundancy.
Legal principles established
#- Termination on grounds of poor performance requires the employer to establish the cause and take supportive measures to address it before terminating
- Section 41 of the Employment Act mandates a show cause notice and hearing before termination on grounds of poor performance
- An employer who fails to provide the employee the tools of trade cannot justify termination based on resulting underperformance
Court orders
#- 1.Judgment entered for the claimant against the respondent with a declaration that termination of employment was unfair
- 2.Compensation at Kshs.514,250.00
- 3.Notice pay of Kshs.51,425.00
- 4.Kshs.30,855.00 for 18 days worked in February, 2017
- 5.The respondent to compute leave and gratuity payable within 14 days and file the same with the court for confirmation
- 6.The claimant to be issued with a Certificate of Service
- 7.Costs to the claimant
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (first-instance employment cause under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sosphita Abdalla Kisanya v Intex Construction Co Ltd [2018] KEELRC 2545 (KLR)", Case Analysis (2018). Cause No. 349 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2545/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.