Khadija Asman Adams v Nic Bank Limited [2021] KEELRC 1787 (KLR)
The bottom line
#A Kenyan court ruled that even a well-documented poor performance case still requires a proper disciplinary hearing before an employee can be fired.
What this practically means
#Executive summary
#Key legal issues
#Whether a performance evaluation process satisfies section 41 procedural fairness
It does not; the Claimant was not taken through a disciplinary process as envisaged by law, making the termination procedurally unfair despite valid reasons.
Section 41 requires an employer to give the employee an opportunity to make representations before termination for misconduct, poor performance or incapacity, and the right to be accompanied by a colleague or union representative. An ordinary performance evaluation lacks these inbuilt protections. It merely sets the factual background for any subsequent disciplinary hearing. Since no such disciplinary process was conducted and no HR manual governing discipline was disclosed, the process fell short of the law.
Substantive fairness - whether reasons for termination were valid and fair
The Respondent proved the Claimant's performance did not match agreed standards, so valid and fair reasons existed under sections 43 and 45.
The burden lay on the Respondent under sections 43 and 45 of the Employment Act to prove the reasons for termination. It produced a performance review letter dated 27 July 2015, minutes of a performance review meeting of 9 November 2015 and minutes of the appeal hearing of 5 January 2016. On considering those documents the Court was satisfied the Claimant's performance did not match agreed standards, so the reasons were valid and fair, though the process was not.
Quantum of compensation for unfair termination
Equivalent of 4 months' gross salary (Kshs 300,000/-) was fair given about 7 years of service and the fact that valid reasons existed but the process was unfair.
In exercising discretion on compensation under section 49, the Court weighed the length of service (about 7 years), the fact that the Respondent had established valid and fair reasons for termination, and the failure to follow a fair process. Balancing these factors, four months' gross salary at Kshs 75,000/- per month was considered fair, yielding Kshs 300,000/-.
Whether the Respondent's counterclaim was proved
It was not; the alleged unreturned properties were never disclosed and a clearance form is not tangible property.
The Respondent's witness did not identify the properties the Claimant allegedly failed to surrender, and a staff clearance form is a facilitative document, not tangible property. The Claimant testified she surrendered a mobile phone, sim card, tag, business cards and health card to Mr Mutua of human resources, but the Respondent did not call Mr Mutua to testify and offered no explanation for his absence. The counterclaim therefore failed.
Legal principles established
#- A performance evaluation process is not a disciplinary process and cannot substitute for the procedural fairness protections of section 41 of the Employment Act, such as a hearing while accompanied by a colleague or trade union representative.
Court orders
#- 1.Award of Kshs 300,000/- being the equivalent of 4 months' gross salary as compensation for unfair termination
- 2.Award of benefits set in the letter of termination if the same were not collected
- 3.Costs to the Claimant on a half-scale
- Jurisdiction invoked
- Employment Act, 2007 (sections 41, 43 and 45)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khadija Asman Adams v Nic Bank Limited [2021] KEELRC 1787 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1787/eng@2021-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.