Mabil v Direct Channel Simbatech [K] Limited (Cause 764 of 2015) [2023] KEELRC 823 (KLR)
The bottom line
#A Kenyan court awarded an employee over Kshs.2.8 million after finding his dismissal for poor performance unfair and discriminatory.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was substantively justified
Not justified - the Respondent failed to prove a valid and fair reason; no performance appraisal was conducted despite recommendation
The termination letter cited poor performance and inability to fit new operational roles. Under section 45(2), the employer must prove a valid reason. No performance appraisal was done despite a recommendation, so no parameters for assessing performance existed. The reasons in the show cause letter were not repeated in the termination letter, undermining the claimed justification.
Whether termination followed fair procedure under section 41
No fair hearing was accorded; termination was procedurally flawed
The disciplinary hearing of 4th March 2015 dealt with misconduct complaints, not poor performance. After the show cause letter of 13th March 2015, the Claimant responded on 17th March 2015, the very day he was terminated, with no further hearing. The mandatory notification and hearing requirements of section 41 were thus breached.
Whether the Claimant was discriminated against
Yes - differential treatment proved regarding medical cover and bonus
The Claimant proved he was removed from the medical scheme while others remained, was told as a single man he did not need cover, and was denied bonuses paid to colleagues. These averments were not rebutted by evidence. Under section 5(7) the employer bears the burden of disproving alleged discrimination, which it failed to discharge.
Remedies payable
General damages for discrimination of Kshs.2,000,000, notice pay, leave pay and 8 months' compensation awarded; service pay and house allowance declined
Having found unfair termination and discrimination, the court awarded damages under sections 36, 45, 49(1) and 5 of the Employment Act, considering length of service, demeaning treatment, unilateral demotion, cancellation of the terminal dues cheque, and the consolidated salary and NSSF membership which defeated the service pay and house allowance claims.
Legal principles established
#- For a termination to be fair there must be both substantive justification and procedural fairness
- An employer terminating for poor performance bears a high level of proof, including a performance measurement policy, appraisal, and a hearing
- In discrimination claims under section 5(7) of the Employment Act, the employer bears the burden of proving the discrimination did not occur
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unlawful, unfair and in breach of the Employment Act, 2007
- 2.General damages of Kshs.2,000,000/- for discrimination
- 3.Kshs.65,000/- being one month's pay in lieu of notice
- 4.Kshs.284,375/- for 113.75 untaken leave days
- 5.Compensation of 8 months' salary, Kshs.520,000/-, for unfair termination
- 6.Costs of the claim to the Claimant
- 7.Interest on terminal dues from date of filing suit and on all other claims from the date of Judgment until payment in full
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mabil v Direct Channel Simbatech [K] Limited (Cause 764 of 2015) [2023] KEELRC 823 (KLR)", Case Analysis (2023). Cause No 764 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/823/eng@2023-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.