Naomi Connie Lusiche v Barclays Bank of Kenya [2021] KEELRC 1205 (KLR)
The bottom line
#Kenya's Employment Court ruled Barclays unfairly terminated a 26-year employee over weak performance evidence, awarding her Kshs. 6.65 million.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination on grounds of underperformance
Termination was not based on a fair and valid reason under Sections 43 and 45 of the Employment Act
The Petitioner served 26 years with consistently high ratings until the final 2 years. Reviewers' comments were curt, generalized and unsupported by clear statistical data; Feedback Providers were complimentary. The dip in performance coincided with the Respondent's restructuring and her transfer to agency banking without a clear job description. It was illogical that a long-serving top performer would suddenly become a consistent underperformer without explanation.
Procedural fairness of the termination
Procedure was largely in conformity with Section 41 of the Employment Act
The Petitioner was issued a show-cause letter, responded, was notified of and attended the capability hearing, was given an opportunity to express her position, and could appeal the rating before the hearing. She filed an appeal against termination but did not pursue it even after the Court stayed proceedings to allow her to do so.
Jurisdiction over disputes arising from the staff Loan Agreement
The counterclaim and related reliefs were declined for want of jurisdiction; the dispute belongs to the arbitrator
The Loan Agreement contains an arbitration clause referring disputes to a single arbitrator under the Chartered Institute of Arbitrators rules. By that clause the parties rejected the Court's jurisdiction and expressly conferred it on an arbitrator. Both the Respondent's counterclaim for the loan balance and the Petitioner's loan-related reliefs must be pursued in arbitration.
Remedies for unfair termination
Compensation of 8 ½ months' gross salary plus one month's notice pay; other remedies refused
Though termination lacked valid reason, procedure was largely fair. Compensation is capped on the pleaded gross monthly salary of Kshs. 700,000, excluding the annual car allowance. Notice pay follows the contractual one-month notice period. Certiorari, exemplary damages, libel damages, loss of career damages and medical cover extension all failed for lack of evidence or jurisdiction.
Legal principles established
#- An objective Performance Management System must establish that underperformance has occurred, investigate its cause in a long-serving employee, and seek to rectify the triggering work environment
- Performance management should correct employment failures, not serve as a mode of terminating employment contracts
- Parties who contractually refer disputes to arbitration positively reject the jurisdiction of the Court over those disputes
Court orders
#- 1.Review and set aside the orders of 30th September 2019 deeming the Petition a Claim, and treat the dispute as a Petition
- 2.Declaration that termination was unfair for want of valid reason or reasons
- 3.Respondent to pay the Petitioner the equivalent of 8 ½ months' gross salary in compensation for unfair termination at Kshs. 5,950,000 and notice pay at Kshs. 700,000, total Kshs. 6,650,000
- 4.Costs to the Petitioner
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution read with the Employment Act and the Employment and Labour Relations Court (Procedure) Rules, 2016 (Rule 7)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naomi Connie Lusiche v Barclays Bank of Kenya [2021] KEELRC 1205 (KLR)", Case Analysis (2021). Petition Number 22 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1205/eng@2021-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.