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ELRCPartially AllowedCause No 2154 of 2014· [2021] KEELRC 807 (KLR)

Julius Mark Bwibo v British American Tobacco Kenya Ltd [2021] KEELRC 807 (KLR)

Employment and Labour Relations Court
8 October 2021
2,339 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled BAT unfairly fired an employee for poor performance in a temporary project role, awarding him 10 months' salary.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent since 1989 (re-engaged in 1996) and serving as a Senior Business Analyst from 1 August 2010, was additionally appointed Project Manager for the time-bound mWEWE project in 2010. His performance was rated 'nearly there' for 2011 and 'requires improvement' for 2012, and he was placed on a four-month performance improvement plan. After a show-cause notice, written responses, and a two-session disciplinary hearing attended with an advocate, his employment was terminated on 3 May 2013 for underperformance. The Claimant sued for unfair termination, breach of contract, additional remuneration for the project manager role, a Kshs 1,000,000 bonus, notice pay, salary for May 2013 and severance pay. The Court found the procedure substantially compliant with sections 35(1) and 41 of the Employment Act, 2007, but held under sections 43 and 45 that the Respondent failed to prove the reason for termination valid and fair, since the Claimant's substantive-role ratings were satisfactory and a reasonable employer would have reverted him to that role instead of terminating him. The termination was declared unfair and compensation of Kshs 5,058,260/- (10 months' gross salary, given over 20 years of service) was awarded with interest at court rates if unpaid within 30 days, plus costs. Claims for additional remuneration, the bonus, May 2013 salary and severance pay were refused.

Key legal issues

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01

Procedural fairness of the termination process

Holding

The Respondent substantially complied with sections 35(1) and 41 of the Employment Act; show-cause, written response, oral hearing with accompaniment and adjournment were afforded.

Reasoning

The Court traced the sequence: performance meetings, a performance improvement plan with monthly updates, a show-cause notice setting out allegations, a written response, an invitation to an oral hearing with the right to be accompanied and call witnesses, attendance with an advocate, and an adjourned second hearing before termination. This met the statutory tenets of procedural fairness.

p. 3
02

Substantive fairness - validity of the reason for termination

Holding

The reason (underperformance) was not proved valid or fair because fault related only to a time-bound added project role, not the satisfactory substantive role.

Reasoning

The Claimant's evaluations in his substantive business analyst role were satisfactory; the criticism arose solely from the time-bound mWEWE project manager role, which others had been recommended for. The Court held a reasonable employer would have reverted the Claimant to his substantive role rather than terminate him.

p. 4
03

Entitlement to a bonus for 2012

Holding

Claim refused for lack of evidential foundation on the Respondent's performance.

Reasoning

Although the Claimant showed a practice of paying performance-based bonuses and that colleagues were paid for 2012, he adduced no evidence of the Respondent's performance for that year, which was a necessary foundation for the claim.

p. 3
04

Compensation for unfair termination

Holding

Award of 10 months' gross salary (Kshs 5,058,260/-) considering over 20 years of service.

Reasoning

The Court took into account the length of service, which exceeded 20 years, and applied the gross monthly salary of Kshs 505,826/- from the September 2012 payslip to arrive at the equivalent of 10 months' gross salary as compensation.

p. 4

Legal principles established

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  • It is not fair to terminate an employee's contract on the basis of performance in a specific time-bound added function where performance in the substantive role was satisfactory; a reasonable employer would revert the employee to the substantive role.
  • Under sections 43 and 45 of the Employment Act, 2007, the employer bears the burden of proving that the reasons for termination were valid and fair.

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair
  2. 2.Declaration that the Claimant did not have separate or distinct roles warranting distinct remuneration
  3. 3.Declaration that the Claimant did not prove entitlement to a bonus
  4. 4.Award of compensation of Kshs 5,058,260/- (equivalent of 10 months' gross salary)
  5. 5.Interest at court rates on the compensation if not paid within 30 days
  6. 6.Claimant to have costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 35(1)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination and breach of contract claims under the Employment Act, 2007

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, "Julius Mark Bwibo v British American Tobacco Kenya Ltd [2021] KEELRC 807 (KLR)", Case Analysis (2021). Cause No 2154 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/807/eng@2021-10-08

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