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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 1214 of 2015

Francis Madegwa Shitemi v Corporate Security Services Limited [2021] KEELRC 2393 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
11 November 2021
1,403 words in judgment
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The bottom line

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Kenya's Employment Court ruled that firing an employee for poor performance without a proper hearing is unfair, even if performance problems are real.

What this practically means

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Executive summary

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The claimant was employed by the respondent on 21st August 2012 as an operations officer earning Ksh.15,000 per month. He went on annual leave on 23rd October 2014 and, before completing it, was issued with a notice of termination effective 23rd December 2014 on grounds of unsatisfactory work performance. He sued claiming unpaid leave days, overtime, public holiday pay, off-day pay, compensation for unfair termination and costs. The respondent defended the termination as justified summary dismissal for negligence and poor supervision, and contended the claimant had exceeded his leave entitlement and enjoyed rest days. The court applied section 41 of the Employment Act, 2007, and the decision in Jane Samba Mukala v Ol Tukai Lodge Limited, holding that an employer relying on poor performance must prove performance-measurement measures and afford the employee a hearing. Finding the respondent had issued the termination notice while the claimant was on leave without due process, the court held the termination unfair under section 45 and awarded compensation of two months' salary (Ksh.30,000) under section 49. All monetary claims for leave days, overtime, public holidays and off days were rejected: the claimant had taken 52 leave days against 42 earned, enjoyed weekly rest days, and failed to particularise holiday claims. Judgment was entered for the claimant for Ksh.30,000 with 50% of his costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the claimant's employment on grounds of unsatisfactory service/poor performance was fair and in compliance with section 41 of the Employment Act, 2007
  2. 2.Whether the claimant is entitled to compensation for unfair termination under sections 45 and 49 of the Employment Act
  3. 3.Whether the claimant is entitled to payment for 10 days of untaken leave
  4. 4.Whether the claimant is entitled to overtime pay for 4 hours per day over two years
  5. 5.Whether the claimant is entitled to pay for untaken public holidays
  6. 6.Whether the claimant is entitled to pay for off days

Key legal issues

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01

Fairness of termination for poor performance

Holding

Termination was unfair because the respondent issued the termination notice while the claimant was on leave without following due process under section 41

Reasoning

Section 41 requires an employer to explain reasons to the employee and hear representations before terminating for poor performance. The respondent issued the notice while the claimant was on annual leave, without a hearing or show-cause process, and merely cited unsatisfactory service. Following Jane Samba Mukala, the employer bore a high level of proof and had to show performance-evaluation measures. Failure to do so rendered the termination unfair under section 45.

p. 2
02

Quantum of compensation for unfair termination

Holding

Two months' salary (Ksh.30,000) awarded under section 49, considering the claimant's two years of service and last wage of Ksh.15,000

Reasoning

Under section 49 of the Employment Act, compensation considers length of service and last earnings. The claimant served two years at Ksh.15,000 per month, so two months' compensation was found reasonable and appropriate.

p. 2
03

Claims for leave, overtime, public holidays and off days

Holding

All these heads of claim were rejected as the claimant had exceeded his leave entitlement, enjoyed weekly rest days, and did not particularise the public holidays claimed

Reasoning

The claimant earned 42 leave days over two years but took 52 days. He testified he enjoyed an off day each week on Saturday or Sunday and took his annual leave, making a daily overtime multiplier dishonest. Public holiday claims were not particularised, and off days were enjoyed. The claims failed on the evidence.

p. 2

Legal principles established

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  • Termination on grounds of poor performance requires the employer to comply with section 41 of the Employment Act, including notice, reasons, and a hearing before termination
  • It is not sufficient for an employer to merely cite poor performance; the employer must demonstrate performance measurement policies and efforts to address poor performance before termination

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for payment of compensation of Ksh.30,000
  2. 2.Claimant awarded 50% of his costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007 and ELRC establishment)

Relief refused

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Payment for 10 days unpaid leave in 2014 (Ksh.7,143)

The claimant had taken 52 days of leave against 42 days earned over two years and cannot claim more

p. 2

Overtime pay (Ksh.272,160)

The claimant took annual leave and weekly off/rest days, so claiming overtime for every day over two years was not justified

p. 2

Payment for untaken public holidays (Ksh.22,000)

The specific public holidays claimed were not particularised

p. 3

Payment for off days (Ksh.48,000)

The claimant enjoyed his rest days

p. 3

Costs

Claimant awarded 50% of his costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is therefore not sufficient to cite poor or unsatisfactory work performance or service. The employer must do more before terminating employment on such grounds.
p. 2employer's burden in poor performance terminations
Where poor performance is shown to be reason for termination, the employer is placed at a high level of proof as outlined in section 8 of the Employment Act, 2007.
p. 2standard of proof for poor performance (quoting Jane Samba Mukala)
Accordingly, judgement is hereby entered for the claimant against the respondent for payment of compensation of 30,000 and 50% of his costs.
p. 3final orders

Issues in the judgment

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minor

The judgment states the date of termination notice took effect from 24th November 2014 in one passage but earlier records the notice of termination as effective from 23rd December 2014; the defence also describes it as summary dismissal while the court treats it as notice-based termination

minor

The judgment states it was delivered at Nairobi although the cause is filed at the ELRC at Nakuru

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, "Francis Madegwa Shitemi v Corporate Security Services Limited [2021] KEELRC 2393 (KLR)", Case Analysis (2021). Cause No. 1214 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2393/eng@2021-11-11

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