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ELRCPartially AllowedCause No. 13 of 2019· [2020] KEELRC 1762 (KLR)

Naumy Jemutai Kirui v Unilever Tea Kenya Limited [2020] KEELRC 1762 (KLR)

Employment and Labour Relations Court of Kenya
30 January 2020
MMM. Mbar
3,664 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 Unilever unfairly fired an employee for poor performance because it skipped the mandatory hearing required before dismissal.

What this practically means

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Executive summary

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The claimant, employed by the respondent from May 2015 as a safety, health and environment officer, was rated 'poor' (1 out of 5) in her 2017 performance review, placed on a three-month Performance Improvement Plan (PIP) from 1st February to 1st May 2018, and her employment was terminated by letter dated 18th June, 2018 on grounds of poor performance delivery and behavioural conduct. She sought declarations of unprocedural, unfair and unlawful termination, general and exemplary damages, payment for 34 leave days, a certificate of service and costs. The respondent maintained that termination was for genuine poor performance, that due process and the human resource policy were followed, and that all terminal dues including leave were paid. The court framed three issues: unfairness of termination, entitlement to remedies, and costs. It restated that fair termination requires both substantive justification and procedural fairness, holding that section 43(2) cannot be relied on standalone and that even after a failed PIP the employer must comply with the mandatory notification and hearing requirements of section 41 in the presence of a fellow employee or union representative of choice; a PIP is a support tool, not a disciplinary process. Finding no compliance with section 41, the court held the termination unfair under section 45 and awarded compensation equivalent to 10 months' gross salary (Kshs. 2,201,302.90). General and exemplary damages for alleged discrimination were refused for want of evidence; the leave-days claim failed as payment was shown; a certificate of service was ordered to issue unconditionally under section 51. Judgment was entered for the claimant with costs, paid dues subject to section 49(2).

Key legal issues

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01

Whether the termination of the claimant's employment for poor performance and behavioural conduct was unfair

Holding

The termination was unfair under section 45 of the Employment Act because neither documentary nor viva voce evidence showed compliance with the mandatory notification and hearing requirements of section 41; no section 41 hearing was held before termination on grounds of poor performance.

Reasoning

The court restated that fairness requires both substantive justification and procedural fairness. Even where an employer genuinely believes reasons exist under section 43(2), it must comply with section 41: notify the employee of the reasons for considering termination and hear representations in the presence of a fellow employee or shop floor union representative of choice. The PIP is a support mechanism, not a disciplinary process, and after it concludes the employer must still hold a section 41 hearing. No such hearing was evidenced here.

p. 4
02

Whether compensation under section 49 was due and in what amount

Holding

Compensation equivalent to 10 months' gross salary was awarded, taking into account the claimant's roughly three years of service and her resort to consultancy work after failing to secure equivalent employment.

Reasoning

Following the finding of unfair termination, section 49 compensation was due. The claimant served from 18th May, 2015 to 18th June, 2018 as a specialised officer in safety, health and environment, earning Ksh.220,130 gross. Considering her inability to secure equivalent work and the respondent's unfair conduct, 10 months' salary, totalling Ksh.2,201,302.90, was appropriate, subject to section 49(2).

p. 5
03

Whether general and exemplary damages for discrimination and indignity were payable

Holding

Refused. Discrimination claims require evidence of differential treatment; the claimant did not address the issue in submissions and the compensation award sufficed for the core wrong.

Reasoning

The court adopted the definition of discrimination in Barclays Bank of Kenya Ltd v Gladys Muthoni, holding that a party pleading discrimination must call evidence of unequal treatment of persons in the same circumstances. The claimant only generally alleged ill-treatment and did not in written submissions explain why general and exemplary damages were due. Having awarded compensation for the unfair termination, the core wrong, no further damages were warranted.

p. 5

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness
  • Section 41 of the Employment Act mandatorily requires notification and a hearing in the presence of another employee or shop floor union representative before termination on grounds of poor performance, including after a failed Performance Improvement Plan
  • A Performance Improvement Plan is a supportive tool and not part of the disciplinary process; on its conclusion the employer must still follow the due process under section 41 before termination
  • Section 43(2) of the Employment Act cannot be relied on as standalone; genuine belief in reasons does not excuse non-compliance with section 41

Court orders

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  1. 1.Judgment entered for the claimant for unfair termination of employment in the sum of Kshs. 2,201,302.90 (compensation equivalent to 10 months' gross salary)
  2. 2.Certificate of service to issue with the letter of termination of employment for the duration of service
  3. 3.Costs of the suit awarded to the claimant
  4. 4.Paid dues to be subject to section 49(2) of the Employment Act

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 42(1)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 43(2)
  • Employment Act, 2007section 44(3) and (4)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49
  • Employment Act, 2007section 49(2)
  • Employment Act, 2007section 51

Cases cited (7)

  • Walter Ogal Anure versus Teachers Service Commission
  • Fredrick Saundu Amolo versus Principal Namanga Mixed Day Secondary School and 2 others
  • National Bank of Kenya versus Samuel Nguru Mutonya
    [2019] eKLR
  • National Bank of Kenya versus Anthony Njue John
    [2019] eKLR
  • Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) versus Stanley Kinyanjui and Magnate Ventures Ltd
    Industrial Court Cause No. 273 of 2010
  • Barclays Bank of Kenya LTD & Another versus Gladys Muthoni & 20 Others
    [2018] eKLR
  • Angela Wokabi versus Tribe Hotel Limited
    Cause No.1712 of 2014 (Nairobi)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute heard as Cause No. 13 of 2019)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Naumy Jemutai Kirui v Unilever Tea Kenya Limited [2020] KEELRC 1762 (KLR)", Case Analysis (2020). Cause No. 13 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1762/eng@2020-01-30

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