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ELRCDismissedCause No. 178 of 2016· [2019] KEELRC 365 (KLR)

Johnson Githinji Kamau v Maridadi Flowers Limited [2019] KEELRC 365 (KLR)

Employment and Labour Relations Court of Kenya
17 October 2019
MMM. Mbaru
1,465 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed an employer can fairly dismiss a worker for poor performance if warnings were issued and a proper hearing was held.

What this practically means

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Executive summary

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The claimant, employed by the respondent flower farm as a general worker and later confirmed as a sprayer, was summarily dismissed on 27 January 2014 for poor work performance - specifically skipping lines while spraying pesticides. He sued for compensation for unfair termination at 12 months' basic wage, gratuity/severance pay and costs, contending he was neither given a hearing nor notice, and that warnings and hearing records were forced upon him under threat of sanction. The respondent maintained that the claimant was a habitual offender repeatedly warned verbally and in writing, that a disciplinary hearing was conducted on 27 January 2014 in the presence of his representative and witness, and that he was paid his terminal dues including one month's pay in lieu of notice, with an appeal available which he did not pursue. The court found the claimant signed the disciplinary hearing record and had accepted the warnings without appeal or protest, that his failure to call his witness Mr Austin Njau to corroborate the coercion allegation was fatal, and that as a trained sprayer his wilful neglect directly frustrated his own employment. Applying section 41(1) and section 45 of the Employment Act and precedents on poor-performance terminations, the court held there were valid and justified reasons for termination. Compensation was therefore not due; gratuity under clause 24(a) of the collective agreement required 5 years' continuous service, which the claimant's 13 months did not meet, and severance pay is confined to section 40 cases. The entire claim was dismissed with costs to the respondent.

Key legal issues

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01

Whether the termination was for a valid and fair reason under section 45 of the Employment Act

Holding

There were valid reasons for termination - the claimant, a trained sprayer, wilfully skipped lines while spraying pesticides after repeated warnings

Reasoning

The claimant was issued verbal and written warnings for poor work performance, which he accepted without appealing or protesting. On 27 January 2014 he skipped several lines while spraying pesticides. As a trained sprayer holding a certificate of participation, his wilful neglect of duties directly frustrated his own employment. The court found the warnings admitted and the misconduct proved, so the reason for termination was valid.

p. 2
02

Whether the claimant was accorded a hearing under section 41 of the Employment Act

Holding

The claimant attended and signed the record of the disciplinary hearing held on 27 January 2014, with his representative and witness present

Reasoning

The respondent's witness testified that a show cause notice was issued and a disciplinary hearing conducted, with the attendance and hearing record signed by the claimant. The claimant alleged he was forced to sign, but did not call his witness Mr Austin Njau to confirm this, and did not challenge the warnings or hearing on appeal or by letter of protest after termination. The court disbelieved the allegation of forced signatures.

p. 2
03

Entitlement to gratuity and severance pay

Holding

Neither gratuity nor severance pay was payable - the claimant served only 13 months against a 5-year gratuity threshold, and severance pay is confined to section 40 cases

Reasoning

Clause 24(a) of the collective agreement provides gratuity at 23 days' pay per full year for employees terminated after 5 years of continuous service. The claimant worked from 30 December 2012 to 27 January 2014, only 13 months, and was paid in lieu of notice. Severance pay under the Employment Act applies only in redundancy situations under section 40, which did not arise here.

p. 2

Legal principles established

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  • An employer may terminate employment for poor work performance subject to notice of such poor performance and a disciplinary hearing where there is no improvement
  • An employee who accepts warnings without protest or appeal cannot later claim they were forced upon him

Court orders

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  1. 1.The claims made are found without merit and are hereby dismissed with costs to the respondent

Authorities

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Legislation

  • Employment Actsection 41(1)
  • Employment Actsection 41
  • Employment Actsection 45
  • Employment Actsection 40

Cases cited (3)

  • Samson R. Karubara & another versus Wrigley Company E.A. Limited
    [2018] eKLR
  • Alois Makau Maluvu versus Citi trust Kenya Limited & another
    [2018] eKLR
  • Jane Samba Mkala versus Ol Tukai Lodge Limited
    Cause No.823 of 2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Johnson Githinji Kamau v Maridadi Flowers Limited [2019] KEELRC 365 (KLR)", Case Analysis (2019). Cause No. 178 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/365/eng@2019-10-17

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