Phoebe Masake v Taidys Restaurant [2021] KEELRC 2186 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for poor performance without proof or a fair hearing is unlawful, awarding the worker over Kshs. 186,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination (poor performance) was valid and fair
The Respondent failed to prove a valid and fair reason; no accounts records, NHIF documents, warning letters, agreed targets or performance measurement tools were produced.
Under sections 43 and 45 of the Employment Act the employer must prove the reason for termination on a balance of probability. RW1 produced no accounts records to show the Claimant failed to reconcile the 2015 accounts, nor NHIF documents showing she delayed remittances; the manager did not testify to rebut evidence that he delayed signing cheques and that Chase Bank's receivership prevented timely payment. No warnings or performance targets were exhibited.
Whether the termination procedure was fair
The procedure was unfair; the Respondent did not prove the Claimant was accorded a disciplinary hearing as required by section 41 of the Employment Act.
Section 41 obliges an employer, before terminating on grounds of misconduct, poor performance or physical incapacity, to explain the reasons to the employee and hear any representations. RW1 gave no evidence of a disciplinary hearing and admitted he never attended one. In the absence of proof of any hearing, the procedural limb of section 45 was not satisfied.
Whether the Claimant is entitled to the reliefs sought
Partially: notice pay, three months' compensation, leave days, April 2016 salary and off days were awarded based on the Respondent's computation; transport allowance was dismissed for lack of evidence.
Having declared the termination unfair, the court awarded one month's salary in lieu of notice and three months' compensation, considering the Claimant's less than two years of service, absence of contributory misconduct and failure to secure alternative employment. Terminal dues were quantified on the computation produced by the Respondent and corroborated by the Claimant's admission. The transport allowance claim lacked supporting evidence.
Legal principles established
#- The employer bears the burden of proving a valid and fair reason for termination on a balance of probability; unsupported allegations of poor performance without records, warnings, agreed targets or performance measurement tools do not discharge that burden.
- Before terminating an employee on grounds of poor performance, the employer must comply with section 41 of the Employment Act by explaining the reasons and hearing the employee's representations; failure to prove a disciplinary hearing renders the procedure unfair.
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair and unlawful within the meaning of section 45 of the Employment Act
- 2.Kshs. 30,000 being one month salary in lieu of notice
- 3.Kshs. 90,000 being three months' salary as compensation for unfair termination
- 4.Kshs. 33,000 for leave days
- 5.Kshs. 27,692.30 for April 2016 salary
- 6.Kshs. 6,000 for 6 off days, totalling Kshs. 186,692.30 subject to statutory deductions
- 7.Costs of the suit to the Claimant plus interest at court rates from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 44(4)(c), 45) and the Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phoebe Masake v Taidys Restaurant [2021] KEELRC 2186 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2186/eng@2021-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.