Ndungu v International Center for Policy and Conflict (Cause 580 of 2018) [2023] KEELRC 2015 (KLR)
The bottom line
#Kenya's Employment Court confirmed that even a fixed-term employee weeks from contract expiry must get notice and a hearing before being fired for underperformance.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair
The termination was unfair both in procedure and substance; gross underperformance was not established through due process
The contract was terminated by letter dated December 8, 2017 citing funding status and gross underperformance. Although the contract was three weeks from lapsing and provided three weeks' notice, the invocation of gross underperformance required notice and a hearing under section 41 of the Employment Act. The respondent failed to establish the alleged underperformance as a valid and fair reason under sections 43 and 45, so the termination was unfair both procedurally and substantively.
Whether the claimant was entitled to the withheld balance of her salary
The claim for unpaid salary for twelve months was declined as the claimant willingly accepted the reduced pay given donor funding
The claimant testified she never complained about receiving Kshs.75,665.00 instead of the contracted Kshs.300,000. Her letter to the Executive Director acknowledged awareness of the funding status and that staff had willingly given up salaries. The court found she willingly accepted the reduced pay as due in view of prevailing donor funding, and declined the claim for Kshs 2,692,020.
What compensation is appropriate for the unfair termination
Ten months' gross salary, Kshs.756,650.00, awarded under section 49 of the Employment Act
In assessing remedies, the court considered the claimant's dedication and willing acceptance of pay cuts for the respondent's survival, the pay continued up to February 2018, and the aggravating factor of the unfair termination. Balancing the factors in section 49, the court awarded ten months' gross salary. Pay in lieu of notice was refused because the contract was lapsing on December 31, 2017 and the respondent paid up to February 2018.
Legal principles established
#- An employee alleged to have underperformed is entitled to notice and a hearing before termination under section 41 of the Employment Act, 2007
- An employer must establish a valid and fair reason for termination under sections 43 and 45 of the Employment Act, 2007, failing which the termination is unfair in substance and procedure
Court orders
#- 1.Declaration that the termination of the contract of service was unfair
- 2.Respondent to pay the claimant Kshs.756,650.00 by October 1, 2023 failing which interest at court rates from the date of judgment until full payment
- 3.Respondent to deliver the claimant's certificate of service by September 1, 2023
- 4.Respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and article 41(1) of the Constitution of Kenya invoked by the claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v International Center for Policy and Conflict (Cause 580 of 2018) [2023] KEELRC 2015 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2015/eng@2023-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.