Murua v Oracle Technology Systems (Kenya) Limited (Cause 1978 of 2017) [2023] KEELRC 1613 (KLR)
The bottom line
#Kenya's Employment Court confirmed Oracle fairly dismissed an employee who skipped performance improvement review meetings, so attending your employer's meetings matters.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent had a justifiable reason to terminate the claimant's employment
Yes - the claimant's failure to attend the PIP review meetings of 28th and 31st August, 2017, regarded as insubordination, availed a justifiable reason
The termination letter cited insubordination and serious misconduct for failure and refusal to attend two PIP review meetings. The court traced the chronology of a PIP stretched over nearly nine months, during which the claimant's grievances were addressed through the grievance process and meetings, and found his non-attendance was deliberate, with no refutation of the respondent's assertion that he missed the two meetings. His conduct left the respondent with little choice but to commence disciplinary action.
Whether the termination was in accordance with fair procedure
Yes - the process complied with Sections 41 and 45(2)(c) of the Employment Act
The claimant received a notice dated 5th September, 2017 setting out the allegations, date, time, venue and identity of the chair, and his right to be accompanied by a fellow employee. He attended the hearing and was given an opportunity to respond. His assertion that the disciplinary policy's rules of engagement were breached was not particularised. The court found the process consonant with Section 41 and held the termination neither unfair nor unlawful.
Whether the claimant was discriminated against by being the only employee placed on a PIP
No - the claimant did not substantiate the claim of discrimination
The claimant did not provide particulars of other underperforming employees who were not placed on a PIP. The court noted that performance is individual and that the claimant's performance was not the real reason for termination; rather it was his failure to attend the PIP review meetings regarded as insubordination.
Whether the claimant was entitled to commissions under the FY2018 Individualized Compensation Agreement
No entitlement established
RW1 testified that commission payment was conditional on meeting fiscal year targets of Kshs. 6,367,500/=, which the claimant did not meet, and that his contract was terminated before the end of Fiscal Year 2018. The dismissal of the claim in its entirety resolved this against the claimant.
Legal principles established
#- An employer must prove substantive justification for termination under Sections 43(1) and 45(2)(a) and (b) of the Employment Act; reasons must be fair, valid and related to conduct, capacity or compatibility or operational requirements
- An employee's performance is ultimately individual; it is up to the employee to defend his own individual performance and prove he was not a candidate for a PIP
- Under Section 41 of the Employment Act, an employer must notify the employee of the reasons for contemplated termination and afford a hearing in the presence of a fellow employee or shop floor union representative of the employee's choice
Court orders
#- 1.Dismissal of the claim in its entirety
- 2.No orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (as invoked in the pleadings and reliefs)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murua v Oracle Technology Systems (Kenya) Limited (Cause 1978 of 2017) [2023] KEELRC 1613 (KLR)", Case Analysis (2023). Cause No 1978 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1613/eng@2023-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.