Githinji v Kenya Commercial Bank Limited (Cause E043 of 2022) [2023] KEELRC 2269 (KLR)
The bottom line
#A Kenyan court ruled a bank unfairly fired an employee for poor performance in a new role it never trained him for, awarding 10 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of the reason for termination (poor performance)
The reason was not valid and fair because the claimant was deployed to a new sales role without prior training or a job description, and his performance was hampered by Covid-19 containment measures.
RW1 admitted no job description was availed and that UCC was a sales role while the claimant's prior role was service-oriented. The court took judicial notice of Government movement restrictions in 2020-2021 which affected the claimant, the only UCC in the branch. The performance policy did not account for the pandemic or the lack of training and job description, so no reasonable employer could have dismissed him in those circumstances.
Procedural fairness under section 41 of the Employment Act
Fair procedure was followed: the claimant was notified of the reason, heard with a representative, the decision was communicated in writing with a right of appeal which was considered.
The claimant admitted on cross-examination that he was served with a letter summoning him to a capability hearing stating the reason, attended with a representative, responded to questions, received a termination letter citing the reason and giving a right of appeal, and his appeal was considered and determined. The court found these facts supported a fair hearing.
Discrimination under Article 27 of the Constitution and section 5 of the Employment Act
Discrimination was not proved; the claimant did not show another below-par employee retained employment or a UCC treated differently.
Although the claimant alleged colleagues with the same rating were transferred while he was dismissed, he failed to prove that any other employee marked below par retained employment or that such persons worked as UCCs and were treated differently. The claim for exemplary damages for discrimination was therefore declined.
Reliefs under sections 43, 49 and 51 of the Employment Act
Termination declared unfair; claimant awarded balance of notice pay (Kshs.12,508.00) and 10 months' salary (Kshs.2,018,350.00) as compensation, plus certificate of service.
Having found the employer failed to justify the reason for termination, the court deemed the termination unfair under section 45. Considering the claimant's roughly 14 years of service and absence of misconduct, the court exercised discretion under section 49(1) to award 10 months' salary based on the gross salary of Kshs.201,835.00 shown in the April 2022 pay slip.
Legal principles established
#- An employer may not validly terminate an employee for poor performance in a role imposed on him without prior training and without a job description, particularly where external factors such as Covid-19 containment measures affected performance.
- Compliance with section 41 of the Employment Act requires notification of the reason, a hearing with a representative, consideration of representations, written communication of the decision and a right of appeal.
- Pension is a social security protected by law and cannot be accessed by the employer to settle loans.
Court orders
#- 1.Declaration that the termination of the claimant's services was unfair and unlawful
- 2.Award of Kshs.12,508.00 being the balance of one month's salary in lieu of notice
- 3.Award of Kshs.2,018,350.00 being 10 months' salary as compensation for unfair termination
- 4.Claimant to be issued with a certificate of service under section 51 of the Employment Act
- 5.Costs of the suit and interest at court rates from the date of judgment, the award subject to statutory deductions
- 6.Direction that the claimant must be paid all his pension dues by the pension scheme under the rules of the scheme, and it must not be accessed by the employer for whatever reason
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinji v Kenya Commercial Bank Limited (Cause E043 of 2022) [2023] KEELRC 2269 (KLR)", Case Analysis (2023). Cause No E043 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2269/eng@2023-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.