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ELRCDismissedCause No 365 of 2018· [2020] KEELRC 1523 (KLR)

Amina Ali Masha v Happy Cow Dairy Limited [2020] KEELRC 1523 (KLR)

Employment and Labour Relations Court
5 March 2020
LNLINNET NDOLO
1,328 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 upheld an employee's dismissal for poor performance because the employer had warned her and given her a chance to improve first.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Merchandiser in Mombasa from September 2016 on a monthly salary she stated as Kshs. 23,503, claimed compensation for unfair termination and terminal dues after her employment was terminated effective 1st May 2018. She sought one month's notice pay, salary for April 2018, six days' leave pay for 2017/2018, and twelve months' salary as compensation, asserting that after a show cause and warning there was no further misconduct warranting dismissal, and that conditioning payment of her dues on withdrawal of the claim was an unfair labour practice. The Respondent maintained the Claimant was on a fixed term contract, that renewal was subject to performance, and that termination followed due process: a warning in December 2017, a show cause letter in February 2018 to which she admitted negligence, a further warning, and a termination letter dated 30th April 2018 citing laxity, poor attitude and insubordination. The court framed two issues: whether the Claimant proved wrongful dismissal, and her entitlement to remedies. Applying the principle that an employee accused of poor performance must be given a reasonable opportunity to improve, the court found the Respondent had highlighted the Claimant's shortcomings, issued warnings, and that there was no evidence of improvement, hence a valid reason for termination existed. The claims for notice pay and compensation were dismissed; the April 2018 salary and leave pay claims were settled during trial and their prayers spent. The entire claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the termination of the Claimant's employment for poor performance was wrongful and unfair

Holding

The termination was lawful; the Respondent had a valid reason and observed due procedure

Reasoning

The court traced the correspondence: a warning letter of 8th December 2017 for laxity and insubordination, a show cause letter of 12th February 2018 to which the Claimant admitted negligence, a further warning of 16th February 2018, and finally the termination letter of 30th April 2018. The Respondent pointed out the Claimant's shortcomings and gave her an opportunity to improve; there was no evidence of improvement. Poor performance is a valid ground under the Employment Act, so both reason and procedure were satisfied.

p. 3
02

Whether the Claimant was entitled to the remedies sought (notice pay, compensation, April 2018 salary and leave pay)

Holding

Notice pay and compensation refused; the April 2018 salary and leave pay claims were settled during trial and therefore spent

Reasoning

Having found a valid reason for termination, the court held the claims for compensation and notice pay lacked basis and dismissed them. The court noted during trial that the salary for April 2018 and leave pay had been settled, rendering those prayers spent. The overall claim therefore failed and was dismissed, with each party bearing their own costs.

p. 3

Legal principles established

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  • An employee facing accusations of poor performance ought to be allowed a reasonable opportunity to improve before termination.

Court orders

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  1. 1.Dismissal of the claims for compensation and notice pay
  2. 2.Recognition that the claims for salary for April 2018 and leave pay were settled in the course of trial and the prayers thereon are spent
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActGeneral (termination grounds)

Cases cited (1)

  • Kenya Sci-ence Research International Technical and Allied Workers Union (KSRITAWU) v Stanley Kinyanjui and Magnate Ventures Ltd
    Cause No. 273 of 2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (as invoked in the judgment)

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, "Amina Ali Masha v Happy Cow Dairy Limited [2020] KEELRC 1523 (KLR)", Case Analysis (2020). Cause No 365 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1523/eng@2020-03-05

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