Bernard Ingati v Crescent Computer Services Limited [2019] KEELRC 1261 (KLR)
The bottom line
#A Kenyan employer that fires an employee for poor performance without a disciplinary hearing must pay up to 12 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination for poor performance
The termination was procedurally unfair as the Claimant was not subjected to a disciplinary hearing as envisaged under Section 41 of the Employment Act
The Claimant was employed as a Service Engineer but given sales targets. There was no indication he could have done sales work, and no indication that he was subjected to a disciplinary hearing under Section 41. The Respondent also failed to call any evidence to counter the Claimant's evidence, leaving the claim uncontroverted.
Burden of proof where respondent calls no evidence
The Respondent's failure to call any witness meant the Claimant's case remained uncontroverted
The Respondent filed a Reply but did not call any witness. The Court found that the Respondent failed to counter the Claimant's evidence, so the Claimant's case remained uncontroverted and standing. This supported the finding of unfair and unjustified termination.
Legal principles established
#- A termination must satisfy both substantive justification and procedural fairness to pass the fairness test
- An employer must, before terminating an employee for poor performance, explain the reasons and hear representations under Section 41 of the Employment Act
Court orders
#- 1.Declaration that the termination of the Claimant was unfair and unjustified
- 2.Award of 12 months' salary as compensation for unlawful and unfair termination (Kshs. 1,275,300/=)
- 3.Award of 1 month's salary as notice pay (Kshs. 106,275/=)
- 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- 5.Certificate of service to issue
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Ingati v Crescent Computer Services Limited [2019] KEELRC 1261 (KLR)", Case Analysis (2019). ELRC No. 1869 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1261/eng@2019-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.