David Kimandi Ndubai v K-Rep Bank Limited [2019] KEELRC 2455 (KLR)
The bottom line
#A Kenyan court awarded a bank manager ten months' salary because his employer terminated him using its own performance categories incorrectly.
What this practically means
#Executive summary
#Key legal issues
#Valid reason for termination
The respondent failed to prove a valid reason; a rating of 4 denoted 'needs improvement', not poor performance, so the termination on the ground of poor performance was unjustified.
Under the respondent's own HR Policies and Procedures, a rating of 4 means 'needs improvement' and calls for coaching and a development plan, while only rating 5 is a poor performer. The claimant was rated 4, thus could not be deemed a poor performer. The employer bore the burden of proving the reason and failed, rendering the termination unfair.
Procedural fairness / progressive discipline
Termination without resort to progressive discipline and without a demonstrable hearing was severe, unreasonable and contrary to the respondent's HR Manual.
Clause 8.1.2.3 of the respondent's HR Manual required progressive penalties and that stricter penalties not be imposed where the employee had not previously received a written warning. The claimant's rating of 4 prescribed coaching and a development plan within six months; immediate termination was severe and unreasonable.
Alteration of appraisal score
The variation of the claimant's appraisal rating from 3.3 to 3.5 (rounded to 4) undermined the respondent's case.
The appraisal initially placed the claimant at 3.3, which the respondent later varied claiming overrating on certain components. The claimant testified the agreed rating was to be signed by both parties. The unexplained variation cast doubt on the fairness and integrity of the assessment relied on to terminate him.
Legal principles established
#- The burden of proving the reason for termination of employment rests on the employer, and failure to do so renders the termination unfair.
Court orders
#- 1.Judgment entered against the respondent in the sum of Kshs. 1,210,520 being ten months' salary as compensation for unfair termination, subject to taxes and statutory deductions
- 2.Interest on the award at court rates from the date of judgment until payment in full
- 3.Claimant to have costs of the suit
- 4.Other heads of claim rejected for lack of evidence
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kimandi Ndubai v K-Rep Bank Limited [2019] KEELRC 2455 (KLR)", Case Analysis (2019). Cause 1223 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2455/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.