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ELRCPartially AllowedCause No 1437 of 2017· [2021] KEELRC 1595 (KLR)

Bernard Ogari v Freight in Time Limited [2021] KEELRC 1595 (KLR)

Employment and Labour Relations Court
20 January 2021
NMNzioki wa Makau
2,129 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 that firing an employee for poor performance without clear targets, a fair process, or a hearing is unlawful.

What this practically means

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Executive summary

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The Claimant, employed as a commercial manager from 15th June 2015 at a starting salary of Kshs. 275,000/- with a promised post-probation review to a maximum of Kshs. 350,000/-, sued the Respondent for unfair, unlawful termination and non-payment of terminal dues. He alleged that on 31st May 2016 the Respondent unilaterally imposed unrealistic performance targets and that on 20th June 2016 it terminated his employment for non-performance without a warning letter, notice to show cause, or the hearing required under Section 41 of the Employment Act and Article 41 of the Constitution. The suit proceeded to formal proof on 7th December 2020 in the Respondent's absence; no defence had been filed, and the Respondent's later motion to set aside the proceedings of 5th December 2018 was noted but the matter had already been fixed for formal proof. The court identified only one live issue - whether the termination was unfair or unlawful - since the Claimant admitted receiving his terminal dues. Relying on Jane Samba Mukala v Ol Tukai Lodge Limited, the court held that an employer dismissing for poor performance bears a high burden of proof and must have objective evaluation criteria and afford the employee a reasonable opportunity to improve. The appraisal showed the Claimant generally met expectations, yet he was dismissed less than a month later without clear guidelines, improvement opportunity or prior notice of the reason for termination. The dismissal was declared unlawful and unfair. The Claimant was awarded three months' salary as compensation (Kshs. 825,000/-), costs and interest. Claims for salary arrears and bonus failed, the salary review claim for lack of sufficient material.

Key legal issues

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01

Whether the termination of the Claimant's employment for poor performance was substantively and procedurally fair

Holding

The dismissal was both unlawful and unfair. No clear performance guidelines had been put in place, the dismissal came less than a month after the only appraisal, and the Claimant was not given an opportunity to improve or informed of the reason for termination as required by Section 41 of the Employment Act.

Reasoning

The appraisal for June 2015 to May 2016 showed the Claimant generally met expectations. The Respondent dismissed him less than one month later without clear evaluation guidelines, without a follow-up review or reasonable opportunity to improve, and without the Section 41 hearing. Drawing on Jane Samba Mukala v Ol Tukai Lodge Limited, the court held the dismissal lacked objective criteria and fell within unlawful and unfair termination under Sections 41, 43 and 45 of the Employment Act.

p. 2
02

Whether the Claimant was entitled to salary arrears following the promised post-probation salary review

Holding

The claim for salary review failed for lack of sufficient material.

Reasoning

The appointment letter made any salary review up to Kshs. 350,000/- conditional on performance. The Claimant had worked only one year, undergone only one appraisal, and the court had no objective basis to determine an appropriate increment, so no arrears were awarded.

p. 2
03

Whether the Claimant's claim for terminal dues remained for determination

Holding

The issue fell away as the Respondent had apparently met its obligations on terminal dues.

Reasoning

By his own admission the Claimant had been paid one month's salary, leave dues and four months' unpaid salary, leaving only the unfair termination issue for determination.

p. 2

Legal principles established

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  • Where an employee is dismissed for poor performance, the employer bears a high burden of proof and must show that objective criteria and a fair performance-improvement process were in place before termination
  • An employee being dismissed for non-performance must be informed of the reason for termination and afforded the procedural safeguards of Section 41 of the Employment Act

Court orders

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  1. 1.A declaration that the dismissal of the Claimant was unlawful and unfair within the meaning of Section 43 of the Employment Act
  2. 2.3 months' salary as compensation for unlawful dismissal – Kshs. 825,000/-
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest at court rates on the compensation from the date of judgment until payment in full

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 43(1)
  • Employment Act 2007Section 45
  • Employment Act 2007Section 8
  • Constitution of Kenya 2010Article 41

Cases cited (1)

  • Jane Samba Mukala v Ol Tukai Lodge Limited
    [2010] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and Article 41 of the Constitution (fair labour relations)

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, "Bernard Ogari v Freight in Time Limited [2021] KEELRC 1595 (KLR)", Case Analysis (2021). Cause No 1437 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1595/eng@2021-06-16

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