Kirigia v First Drinks (K) Limited (Employment and Labour Relations Cause 774 of 2017) [2024] KEELRC 1658 (KLR)
The bottom line
#A Kenyan court ruled an employee was unfairly sacked for poor performance where the employer held no proper hearing and kept sloppy appraisals.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination for poor performance
The Respondent failed to comply with Section 41 of the Employment Act; no disciplinary hearing was held and the right of accompaniment was extended only after the decision to terminate had been taken
Section 41 requires the employer to notify the employee of the contemplated termination and reasons, allow representations with the right to accompaniment, and consider them before deciding. The Respondent's witness could not confirm any disciplinary hearing. The termination letter offered explanation and appeal rights only after the decision had been made, and the purported Performance Improvement Plan was never implemented.
Substantive justification of termination for poor performance
The termination was substantively unfair; the Respondent failed to prove valid and fair reasons as the appraisals were contradictory, unsigned, largely unfilled, and no Performance Improvement Plan was in place
The mid-year review scoring 51% contradicted the appraiser's comment of 'meets expectation' and the supervisor's 78% score; the end-year form was unsigned and largely unfilled. The employer had no policy for measuring performance, no Performance Improvement Plan, and blamed the Claimant for the unavailability of a mentor the employer itself was to source.
Conditional reinstatement on performance probation
The conditional reinstatement placing a confirmed employee on a three-month performance probation had no contractual, policy or statutory basis and was an unfair labour practice; the Claimant was entitled to decline it
The Respondent did not demonstrate that the probation decision flowed from the employment contract, HR policy or written law. A confirmed employee cannot be re-subjected to probation. The attempt to portray the Claimant as having caused the separation through her refusal could not sanitize the unfair termination that had already occurred.
Deduction of Kshs. 3,000/- from salary
The deduction was unjustified as the Respondent proved no contractual or policy basis for it
The Respondent asserted the deduction related to a car benefit but produced no documentation anchoring it on a contract stipulation or policy. The assertion remained a bald assertion and the Court granted the prayer for the deducted amount.
Legal principles established
#- An employer terminating for poor performance must show a policy or practice for measuring performance, measures taken to address poor performance, and must afford the employee a hearing with the right to accompaniment before termination
- An employee who has been confirmed into employment cannot be re-subjected to probation
- Section 47(5) of the Employment Act imposes a sequential dual burden: the employee first proves that unfair termination occurred, then the employer justifies the grounds
- A purported reinstatement conditional on performance probation lacking contractual or statutory basis is an unfair labour practice, and the employee was entitled to decline it
Court orders
#- 1.A declaration that the Claimant's employment was terminated unfairly and unlawfully
- 2.The Respondent to pay the Claimant the deducted amount from her salary of Kshs. 3,000/-
- 3.Compensation for unfair termination of Kshs. 1,260,000/- (Kshs. 210,000/- x 6 months)
- 4.Salary in lieu of notice of Kshs. 210,000/-
- 5.Interest on the monetary awards at Court rates from the date of judgment until payment in full
- 6.The Respondent shall bear the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 41, 43, 45, 47(5), 49(1)(c))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirigia v First Drinks (K) Limited (Employment and Labour Relations Cause 774 of 2017) [2024] KEELRC 1658 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1658/eng@2024-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.