Nyangiry Okambaga Bwonditi v Ecobank (K) Limited [2020] KEELRC 1246 (KLR)
The bottom line
#Kenya's Employment Court ruled that a senior banker's refusal to undergo a mandatory performance appraisal justified his summary dismissal without notice pay.
What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of the reason for termination
The claimant's refusal to submit to performance appraisal was a valid and fair reason related to his conduct and the respondent's operational requirements.
Both parties acknowledged that performance appraisal was important, particularly in banking where the Central Bank required appraisal of senior managers. The claimant refused appraisal from the MD citing a relationship breakdown, and refused the Board's offer as its members were his peers. The refusal created an awkward relationship and risked the bank failing a CBK regulatory requirement, which the court held amounted to a fair reason grounded in conduct and operational requirements.
Fairness of the termination procedure
A fair procedure was followed: notices to show cause were issued, the claimant replied, and an oral hearing was offered.
The court reviewed the documents filed by both parties and was persuaded that fair procedure was followed. The claimant received two Notices to Show Cause, responded in writing to both, and was invited to an oral hearing on 31st March 2014, which he chose not to attend. The Board also considered his appeal and representations.
Entitlement to notice pay and summary dismissal under section 44
Since a valid ground for termination existed, summary dismissal was justified and no notice or pay in lieu was necessary.
The claimant was summarily dismissed under section 44 of the Employment Act, which permits termination without notice or with less notice where justified. Having found a valid ground, the court held that the Kshs. 5,639,250 paid as an 'ex gratia' payment was perhaps reflective of the fact that no notice pay was contractually due.
Legal principles established
#- An employee's refusal to submit to a mandatory performance appraisal, required by the regulator, constitutes a fair reason for termination based on conduct standing in the way of the employer's operational requirements.
- Where a valid ground exists for summary dismissal under section 44 of the Employment Act, no notice or pay in lieu of notice is necessary.
Court orders
#- 1.The claim is found without merit and is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyangiry Okambaga Bwonditi v Ecobank (K) Limited [2020] KEELRC 1246 (KLR)", Case Analysis (2020). Cause No 1755 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1246/eng@2020-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.