Julius Mark Bwibo v British American Tobacco Kenya Ltd [2021] KEELRC 807 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Procedural fairness of the termination process
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.
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.
Substantive fairness - validity of the reason for termination
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.
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.
Entitlement to a bonus for 2012
Claim refused for lack of evidential foundation on the Respondent's performance.
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.
Compensation for unfair termination
Award of 10 months' gross salary (Kshs 5,058,260/-) considering over 20 years of service.
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.
Legal principles established
#- 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
#- 1.Declaration that the termination of the Claimant's employment was unfair
- 2.Declaration that the Claimant did not have separate or distinct roles warranting distinct remuneration
- 3.Declaration that the Claimant did not prove entitlement to a bonus
- 4.Award of compensation of Kshs 5,058,260/- (equivalent of 10 months' gross salary)
- 5.Interest at court rates on the compensation if not paid within 30 days
- 6.Claimant to have costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and breach of contract claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.