Wambua v Aga Khan University Hospital (Cause E287 of 2021) [2023] KEELRC 952 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for poor performance without a disciplinary hearing is unfair, awarding five months' salary as compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was procedurally fair
The termination was procedurally unfair because no disciplinary hearing was convened
Section 41 of the Employment Act requires notification of the charge and a chance to respond, ordinarily through a disciplinary hearing. The Respondent's internal Employee Discipline Procedure Manual (clause 5.4) also contemplated a hearing. The meetings with the Regional HR Director did not amount to a hearing. No disciplinary session was convened before the termination letter of 21st October 2020.
Whether the placement on PIP without Performance Review Committee approval invalidated the process
The November 2019 PIP was issued outside the PAP Manual procedure and the Claimant was entitled to resist signing it
Under clauses 5.7 and 6.9 of the PAP Manual, a PIP may only follow a final rating of 'fair/marginal/unsatisfactory' ratified by the Performance Review Committee. The Claimant was rated 'competent' in 2018 and no fresh evaluation was presented to the Committee. Continuous evaluation does not permit arbitrary, haphazard reviews.
Whether the Claimant suffered discrimination
No discrimination established; the Respondent accounted for salary disparities and the Claimant provided no comparative performance data
To establish discrimination the Claimant needed comparative data on co-employees' performance, which was not provided. The Respondent explained salary variances by reference to longevity of service and other factors, and that explanation was unchallenged. The flawed handling of the harassment complaint was not shown to be motivated by prejudice.
Whether the Covid-19 salary reduction was lawful
The salary reduction was a binding consensual contract variation and no refund is payable
Sections 10(5) and 19 of the Employment Act permit contractual variation and certain deductions. The Claimant signed authorities on 7th May and 13th August 2020 consenting to the extension of the salary reduction, and no plea of duress, mistake, undue influence or misrepresentation was made. The court cannot rewrite the parties' agreement.
Whether reinstatement should be ordered
Reinstatement declined in favour of compensation of five months' gross salary
Section 49 of the Employment Act allows reinstatement but only in exceptional circumstances as a remedy of last resort. The strained relations between the Claimant and co-employees, the Claimant's contribution to the circumstances of separation and the Respondent's firm opposition rendered reinstatement impracticable.
Legal principles established
#- An employer who terminates employment must afford the employee a hearing at a disciplinary session as required by section 41 of the Employment Act
- An employer is bound to follow its own internal procedures (such as a Performance Review Committee ratification) before placing an employee on a Performance Improvement Plan
- Parties to an employment contract may lawfully agree to reduce salary if they consult, reduce the arrangement to writing and notify the employee in writing
- Where adequate statutory remedies exist under the Employment Act, a court should apply the doctrine of avoidance and decline to determine constitutional questions
Court orders
#- 1.Declaration that the Respondent's decision to terminate the Claimant's employment is procedurally unfair
- 2.Compensation for unfair termination equivalent to gross salary for five (5) months, Ksh. 1,522,500/=, in lieu of reinstatement, subject to applicable statutory deductions
- 3.Interest at court rates from the date of judgment
- 4.Costs to the Claimant
- Jurisdiction invoked
- Sections 41, 43, 45, 49 of the Employment Act; section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambua v Aga Khan University Hospital (Cause E287 of 2021) [2023] KEELRC 952 (KLR)", Case Analysis (2023). Cause No E287 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/952/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.