Opondo v Jocham Hospital Limited (Cause E002 of 2022) [2023] KEELRC 1206 (KLR)
The bottom line
#A Kenyan employer fired a pharmacist for poor performance without any performance policy or support, and the court found the dismissal unfair, awarding three months' pay.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination for poor performance
Termination was unfair because the respondent did not demonstrate any performance-measurement policy, support or training before issuing show-cause notices and a disciplinary hearing
Section 41(1) requires the employer to explain reasons and hear the employee. For poor performance, the employer bears a high level of proof and must show a policy or practice for measuring performance and the support given. The claimant was employed in his field of expertise and within a year was called to show cause without the respondent demonstrating any such measures. Skipping this stage renders the process a sham.
Entitlement to pay for the unexpired term of a fixed-term contract
Claim for 7 months' pay for breach of contract failed for lack of mitigation
The claimant held a two-year term contract cut short by the unfair termination. However, he was paid in lieu of notice and did not testify on steps taken to secure alternative employment. Anticipatory earnings principles require mitigation, so he cannot claim he stayed idle for the unexpired term.
Assessment of compensation for unfair termination
Compensation assessed at 3 months' gross pay (Kshs. 360,000) taking into account terminal dues already paid
Though the termination was unfair, the respondent had immediately paid terminal dues including 22 days' leave pay (Kshs. 120,000) and notice pay (Kshs. 120,000). Taking these into account, compensation under Section 49(2) was limited to three months' salary.
Legal principles established
#- Before terminating an employee for poor performance, the employer must demonstrate the policy or measures used to measure performance and the support given to the employee; failing which the show-cause and disciplinary process is a sham and the termination unfair under Sections 41 and 45 of the Employment Act.
- An employee claiming damages for wrongful termination must mitigate his loss.
Court orders
#- 1.Judgment entered for the claimant against the respondent with an award of Kshs. 360,000 in compensation (3 months' pay at Kshs. 120,000) subject to Section 49(2) of the Employment Act, 2007
- 2.Each party shall bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 49(2))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opondo v Jocham Hospital Limited (Cause E002 of 2022) [2023] KEELRC 1206 (KLR)", Case Analysis (2023). ELRC Cause (Mombasa) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1206/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.