Rabin Patrick Opwaka & another v National Bank of Kenya [2019] KEELRC 478 (KLR)
The bottom line
#A Kenyan bank was ordered to pay two managers a full year's salary each because it fired them for poor performance without first giving them a hearing.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination for poor performance
The termination was unfair because the Respondent failed to give the Claimants a hearing or disciplinary hearing before termination
Section 41 of the Employment Act requires an employer to explain reasons and hear representations before terminating for poor performance. Although the Claimants had been warned, placed on PIPs and rated below performance, the Respondent failed to show any discussions or hearings before termination. Omitting the hearing deprived the Claimants of a chance to present their version, rendering the termination unfair under Section 45(2).
Entitlement to VER exit terms
Claimants not entitled to VER benefits because they declined the package and were terminated later for poor performance
The VER programme took effect in April 2014 while the Claimants' employment was terminated in April 2015 on grounds of poor performance. The Claimants opted to continue serving and did not apply for VER; they therefore could not claim benefits accorded to employees who exited under that package.
Remedy for unfair termination without a hearing
Maximum compensation of 12 months' salary awarded for termination without a hearing
Having found the termination unfair for want of a hearing, the Court exercised its discretion under the Employment Act to grant the maximum 12 months' gross salary as compensation to each Claimant, computed from their respective salaries, and directed issuance of certificates of service.
Legal principles established
#- An employer must accord an employee a hearing before terminating employment even on grounds of poor performance, per Section 41 of the Employment Act
- A below-par performance rating does not dispense with the need for a disciplinary hearing before termination
- Termination is unfair under Section 45(2) where the employer fails to prove a valid and fair reason and a fair procedure
Court orders
#- 1.Maximum compensation of 12 months' salary in lieu of notice: 1st Claimant KShs. 1,172,028 (97,669 x 12); 2nd Claimant KShs. 1,623,336 (135,278 x 12)
- 2.The Respondent to issue the Claimants with a certificate of service
- 3.The Respondent to pay costs of the suit plus interest at Court rates from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act 2007); no specific constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rabin Patrick Opwaka & another v National Bank of Kenya [2019] KEELRC 478 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/478/eng@2019-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.