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ELRCDismissedCause (Memorandum of Claim filed 18th December 2014)· [2019] KEELRC 494 (KLR)

Jerotich Seii Houlding v International Rescue Committee (IRC) [2019] KEELRC 494 (KLR)

Employment and Labour Relations Court
25 October 2019
4,176 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 dismissed an unfair termination claim, holding that a documented performance plan and a fair hearing justified dismissal—no PIP is legally mandatory.

What this practically means

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Executive summary

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The Claimant, formerly Country Director of the Respondent, sued for a declaration of unfair and unlawful termination, reinstatement, damages for mental stress, harassment and discrimination, terminal dues and 12 months' compensation, contending she was terminated for poor performance without notice, a fair hearing, or a Performance Improvement Plan, and while on sick leave. The Respondent maintained the termination was substantively and procedurally fair, that the Claimant had been notified of performance concerns, that she agreed to an action plan after rejecting her appraisal, and that the disciplinary process began after her sick leave ended. The court framed three issues: substantive reason, procedure, and entitlement to reliefs. On substance, it found the Claimant's performance concerns were documented, that the agreed action plan with deliverables and check-ins was the equivalent of a PIP, and that the Claimant did not improve despite this preferable mode of improvement; there was thus a valid reason under section 45 of the Employment Act. It also held an employer is not obliged to place an employee on a PIP where the parties agree on an alternative improvement mechanism, and that an 'employment-at-will' clause in the Respondent's handbook could not displace the mandatory requirements of section 45. On procedure, the court found the Claimant received a notice to show cause, responded, and attended a hearing, and that she was not on sick leave when the process commenced, as her own emails confirmed; she was therefore given sufficient opportunity to respond under section 41. On reliefs, reinstatement was barred by the three-year limit in Section 12(3)(vii) of the ELRC Act and unwarranted given the finding of fairness; damages, medical bills and sick pay were unproved. The entire claim was dismissed with no orders for costs.

Key legal issues

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01

Whether there was substantive reason to terminate the Claimant

Holding

Yes - the Claimant's poor performance, evidenced by appraisals, an agreed action plan with unmet deliverables, and her own email acknowledging areas of improvement, justified termination under section 45

Reasoning

The Claimant was rated 'Mostly Meets Expectations' and agreed to an action plan with deliverables and check-ins. Deliverables remained incomplete by June 2014. Her own email of 10 March 2014 acknowledged areas needing improvement. The agreed action plan was the equivalent of a PIP, and the Claimant did not improve despite this preferable mode of improvement. The reasons were explained in the notice to show cause.

p. 5
02

Whether the termination was unprocedural

Holding

No - the Claimant was given a notice to show cause, responded, and attended a disciplinary hearing as required by section 41; she was not on sick leave at the time

Reasoning

The Claimant received the notice to show cause on 18 July 2014, responded, and attended the hearing on 22 July 2014 where she was entitled to be accompanied. Her emails showed her sick leave ended on 17 July and she confirmed she had moved to administrative leave during the show-cause period. She did not object to the hearing and was given sufficient opportunity to respond.

p. 6
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Whether the Claimant is entitled to the reliefs sought

Holding

No - reinstatement is time-barred and unwarranted, and claims for damages, medical bills and sick pay were unproved

Reasoning

Reinstatement under Section 12(3)(vii) of the ELRC Act cannot be granted more than 3 years after dismissal; in any event the termination was found fair. The medical bills claim failed because the Claimant was on a medical scheme and did not prove when, why or how the bills were incurred, and she was on full pay during sick leave.

p. 6

Legal principles established

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  • An employer is not obligated to place an employee on a Performance Improvement Plan before terminating for poor performance where the parties have agreed on an alternative performance-improvement mechanism
  • A contractual 'employment-at-will' clause cannot displace the mandatory statutory requirement of a valid reason for termination under the Employment Act

Court orders

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  1. 1.The entire claim fails and is dismissed with no orders for costs.

Authorities

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Legislation

  • Employment ActSections 41(1), 41(2), 43(2), 44(3), 44(4), 45, 45(2), 47(5)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Handbook of Employment Policies and Procedures for Internal Employees (Respondent's HR Handbook)Part C, page 25; Termination, page 18

Cases cited (4)

  • Alex Wainaina Mbugua v Kenya Airways Limited
    Cause 430 of 2016
  • Kenny Kinako v Ringier Africa
    [2016] eKLR
  • Timothy Stephen Mbogho v Kenya Safari Lodges and Hotels Ltd
    [2018] eKLR
  • Moses Kaunda Moro v CMC Motors Group Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (incl. Section 12(3)(vii) on reinstatement); Employment Act Sections 41, 43, 45 and 47(5)

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, "Jerotich Seii Houlding v International Rescue Committee (IRC) [2019] KEELRC 494 (KLR)", Case Analysis (2019). Cause (Memorandum of Claim filed 18th December 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/494/eng@2019-10-25

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