Kaugi v Absa Bank Kenya PLC (Cause E144 of 2022) [2024] KEELRC 1732 (KLR)
The bottom line
#A Kenyan court ruled Absa fairly dismissed its branch manager for poor performance, but still owed her pay for skipping its own disciplinary steps.
What this practically means
#Executive summary
#Key legal issues
#Existence of a performance management and rating system
The Respondent had a Performance Management Policy, Score Rating System, appraisals and PAP mechanism
The Claimant admitted on cross-examination that the Respondent rated employees annually on agreed targets. Uncountradicted evidence from RWI explained the rating bands, and scores were accessible on the Dashboard. Given 33 years of service rising from Bank Clerk to Branch Manager, the Claimant could not be presumed unaware of the rating system.
Discrimination and constitutional violation
Not proved on a balance of probabilities
The particulars of discrimination pleaded in the statement of claim were not supported by evidence of being treated differently from comparable colleagues. The written statement was silent on discrimination, and no constitutional right was particularised or shown to have been violated.
Substantive fairness of termination for poor performance
Substantively fair - valid reason established
Applying Section 43(2)'s partly subjective test and the range of reasonable responses, the court found sustained underperformance (2018, second half 2020, first half 2021 at 65.4%/64%) after multiple PAPs and warnings. The Respondent genuinely believed performance would not improve.
Procedural fairness of termination
Procedurally unfair - employer breached its own policy
The Disciplinary, Capability and Grievance Policy required a minimum three-month PAP with reasonable timescales, yet the Claimant was placed on a one-month PAP; a notice to show cause was issued three days into the PAP and before the agreed reviews, and an expired warning letter was relied upon. This rendered the termination procedurally flawed.
Legal principles established
#- For a termination to be fair there must be both a valid and fair reason and a fair procedure; substantive justification without procedural fairness is insufficient
- Where poor performance is the reason for termination, the employer bears a higher level of proof and must demonstrate the evaluation measures and efforts to address the poor performance
- An employer who does not follow its own disciplinary and performance-improvement policy acts procedurally unfairly
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent for the equivalent of 3 months' gross salary under Section 49(1)(c) of the Employment Act, 2007 as compensation for procedurally unfair termination
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Sections 12(3)(vii) ELRC Act and 45, 49 Employment Act, 2007 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaugi v Absa Bank Kenya PLC (Cause E144 of 2022) [2024] KEELRC 1732 (KLR)", Case Analysis (2024). Cause No E144 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1732/eng@2024-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.