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ELRCPartially AllowedCause No 339 of 2014· [2020] KEELRC 1231 (KLR)

Jared Ooko Asingo v Metal Crowns Ltd [2020] KEELRC 1231 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
13 March 2020
ANAbuodha Jorum NelsonBOByram Ongaya
1,067 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that signing a discharge certificate doesn't stop employees from suing for unfair termination, and employers must prove employees were heard before dismissal.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 28 February 2011 as Quality Control Supervisor at a monthly salary of Kshs. 106,274, sued over the termination of his employment on 22 August 2011. He alleged the termination was driven by racism by a director, that he was denied a fair hearing, was never warned about his performance, and was pressured into signing a discharge certificate. The respondent denied these allegations, asserting the termination was fair and lawful, based on flaws in the claimant's recruitment and unsatisfactory performance, and that the claimant voluntarily signed a discharge certificate upon receipt of terminal benefits. The parties dispensed with oral hearing and filed written submissions. The Court noted the claimant's probation period would have ended around May 2011, well before termination, and that although the respondent alleged poor performance, no evidence was laid before the Court showing the performance issue was ever raised with the claimant, nor was any show cause letter issued or the alleged recruitment flaws disclosed. The Court held the claimant was denied the procedural fairness guaranteed by sections 41(2) and 45 of the Employment Act and that the termination was unfair. It further held that the signed discharge certificate and payment of terminal dues could not bar the claim, since section 3(b) of the Employment Act makes its provisions minimum terms and any lesser agreement void. The Court awarded the claimant six months' salary as compensation, Kshs. 637,644, in addition to terminal dues already paid, subject to taxes and statutory deductions, with interest at court rates from judgment, plus costs of the suit.

Key legal issues

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01

Procedural fairness in termination for poor performance

Holding

Termination was unfair as no evidence showed the claimant's performance was ever raised with him, no show cause letter was issued, and he was not heard.

Reasoning

The respondent alleged poor performance and flaws in recruitment as reasons for termination. The probation period had expired around May 2011. Yet no evidence, records, warnings, meetings, memos or notice to show cause were laid before the Court demonstrating the claimant was ever confronted with the allegations or given an opportunity to respond, contrary to sections 41(2) and 45 of the Employment Act.

p. 2
02

Effect of a signed discharge certificate

Holding

Signing a discharge certificate and receiving terminal benefits does not bar an employee from pursuing a claim of unfair termination.

Reasoning

Section 3(b) of the Employment Act makes the Act's provisions minimum terms; any agreement providing lesser terms is void. An arrangement preventing an employee terminated in a manner he considers unfair from seeking redress under the Act would therefore be void. The claimant could thus revisit the fairness of his termination and seek compensation.

p. 2

Legal principles established

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  • A discharge certificate signed on receipt of terminal benefits does not bar an employee from challenging the procedural fairness of termination, as Employment Act provisions are minimum terms and any lesser agreement is void.
  • Where an employer alleges poor performance as reason for termination, there must be evidence the performance issue was raised with the employee and that procedural fairness under sections 41(2) and 45 of the Employment Act was accorded.

Court orders

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  1. 1.Award of six months' salary as compensation for unfair termination, being Kshs. 637,644/=, in addition to terminal dues already paid
  2. 2.Award subject to taxes and statutory deductions
  3. 3.Interest at court rates from the date of judgment until payment in full
  4. 4.Claimant to have the costs of the suit

Authorities

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Legislation

  • Employment Actsection 41(2)
  • Employment Actsection 45
  • Employment Actsection 3(b)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Employment and Labour Relations Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jared Ooko Asingo v Metal Crowns Ltd [2020] KEELRC 1231 (KLR)", Case Analysis (2020). Cause No 339 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1231/eng@2020-03-13

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