Emma Amayo v SBT Kenya Limited [2021] KEELRC 1171 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for missing sales targets is unfair unless the employer proves a fair evaluation and hearing process.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was lawful and fair
The termination was unfair; the warning email of 4th October 2016 did not meet the procedural fairness requirements for poor-performance terminations.
The dismissal was grounded on misuse of working hours leading to failure to meet targets, which amounts to poor performance. The Court of Appeal authority in National Bank of Kenya v Samuel Nguru Mutonya, adopting Jane Samba Mukala v Ol Tukai Lodge Limited, places a high evidential burden on employers: they must show an evaluation policy, measures to address poor performance, and an opportunity for the employee to explain. The Respondent only produced a general warning email addressed to several employees, which fell short of these requirements. No hearing or explanation process was demonstrated. The termination was therefore substantively and procedurally unfair.
Whether the Claimant is entitled to the remedies sought
Only compensation of three months' salary was awarded; notice pay and leave claims failed as these had been paid.
Having found unfair termination, the court exercised discretion to award three months' salary rather than the twelve months claimed, factoring in the Claimant's length of service (approximately sixteen months) and the Respondent's unlawful conduct in the process. Evidence showed the Respondent had already paid one month's salary in lieu of notice and accrued leave pay, so those heads of claim were dismissed as without basis. Compensation was fixed at Kshs. 75,000, with interest and costs to the Claimant.
Legal principles established
#- Termination for poor performance requires the employer to prove a performance evaluation policy, measures taken to address poor performance, and procedural fairness including an opportunity for the employee to be heard
Court orders
#- 1.Judgment entered in favour of the Claimant in the sum of Kshs. 75,000 being three (3) months' salary in compensation for unfair termination of employment
- 2.Interest at court rates from the date of judgment until payment in full
- 3.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emma Amayo v SBT Kenya Limited [2021] KEELRC 1171 (KLR)", Case Analysis (2021). Not stated in judgment (Memorandum of Claim dated 15th November 2016, filed 6th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1171/eng@2021-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.