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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 1583 (KLR)

Aika v Surgilinks Limited (Cause E582 of 2022) [2024] KEELRC 1583 (KLR)

Employment and Labour Relations Court
21 June 2024
4,312 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed employee over Kshs 420,000 because his employer could not prove poor performance or a fair disciplinary process.

What this practically means

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Executive summary

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The Claimant, a medical representative employed by the Respondent, sued for unfair termination arising from a summary dismissal on 12th July 2021 on grounds of poor performance and gross misconduct. He sought Kshs 1,431,118 comprising notice pay, unpaid house allowance and compensatory damages. The Respondent defended the dismissal, citing persistent failure to meet targets, absconding duty, false reporting and insubordination, and prayed for dismissal of the suit with costs. The court framed three issues: substantive justification, procedural fairness, and reliefs. On substantive fairness, it found the targets were unclear prior to May 2021, that no performance evaluation was conducted, and that no measures or appraisal system for assessing performance against set targets were proved, placing the employer in breach of its evidential burden under Sections 43 and 45(2)(a) and (b) of the Employment Act. On procedure, apart from minutes of a meeting of 19th April 2021, the Respondent adduced no evidence of notification of a disciplinary hearing, the allegations, reasonable time, or the right to accompaniment required by Section 41, applying the four elements set out in Postal Corporation of Kenya v Andrew K. Tanui. The court declared the termination substantively unjustified and procedurally unfair, awarding one month's notice pay of Kshs 52,486 and compensatory damages of Kshs 367,402 (seven months' gross salary), totalling Kshs 421,888, with interest at court rates and costs of the suit. The house allowance claim of Kshs 758,800 was denied because the salary was expressed as 'gross' and therefore inclusive of house allowance.

Key legal issues

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01

Substantive justification for termination on grounds of poor performance

Holding

The Respondent failed to prove a valid and fair reason; targets were unclear and no performance evaluation or assessment measures were proved

Reasoning

The termination letter cited poor performance and gross misconduct. However, an email of 17th May 2021 showed targets had not been clearly communicated, and the Respondent led no evidence of a performance evaluation report or of measures put in place to assess performance against specified targets. The alleged poor performance was therefore not the product of an objective assessment, and the burden under Sections 43 and 45(2)(a) and (b) of the Employment Act was not discharged.

p. 6
02

Procedural fairness under Section 41 of the Employment Act

Holding

The termination was procedurally unfair; the Respondent did not prove notice of the allegations, notification of the hearing, reasonable time, or the right to accompaniment

Reasoning

Apart from minutes of a meeting of 19th April 2021, there was no evidence of notification of a disciplinary hearing, the allegations to be faced, the time given to appear, or the right to be accompanied. The Claimant testified the last meeting he attended was a relocation meeting and he learned of his dismissal only when asked to collect a parcel. Applying the four Postal Corporation of Kenya v Tanui elements, Section 41 was not satisfied.

p. 8
03

Entitlement to notice pay, compensatory damages and house allowance

Holding

One month's notice pay and seven months' gross salary as compensatory damages awarded; house allowance claim denied because salary was consolidated as 'gross'

Reasoning

Having found the termination both substantively unjustified and procedurally unfair, the court awarded one month's salary in lieu of notice and compensatory damages equivalent to seven months' salary, considering the length of employment and circumstances of termination. The house allowance claim failed because the employment confirmation letter expressed the salary as 'gross', which the court held includes house allowance.

p. 8

Legal principles established

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  • Where poor performance is the reason for termination, the employer bears a high level of proof and must show it had measures in place to assess performance against set targets before terminating
  • An employer must prove compliance with Section 41's requirements of notice, explanation and accompaniment before termination; absence of evidence of notification of a disciplinary hearing vitiates the procedure
  • A salary expressed as 'gross' is inclusive of house allowance

Court orders

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  1. 1.A declaration that the Claimant was unfairly and unlawfully terminated from employment
  2. 2.One month's salary in lieu of notice of Kshs 52,486.00
  3. 3.Compensatory damages of Kshs 367,402.00 being seven months of gross salary
  4. 4.Total award of Kshs 421,888.00
  5. 5.Interest on the total award at court rates from the date of judgment until payment in full
  6. 6.The Claimant shall have the costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act over a claim for unfair termination of employment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Aika v Surgilinks Limited (Cause E582 of 2022) [2024] KEELRC 1583 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1583/eng@2024-06-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.