Ndungu v Safaricom Limited (Cause E012 of 2022) [2024] KEELRC 1801 (KLR)
The bottom line
#Kenya's Employment Court found Safaricom had valid reasons to dismiss a senior manager for poor performance, but the flawed process made the dismissal unfair, entitling him to modest compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid and fair reason for termination (poor performance).
Yes – the Respondent proved on a balance of probabilities that it had a valid and fair reason, as the Claimant was consistently rated a 'mover' (below expectations) and did not meet PIP targets.
The court found the Respondent had a performance management system with agreed targets and appraisal. The Claimant was rated below expectations for 2019/2020, placed on successive PIPs, and admitted at the hearing that he did not meet all PIP targets. Applying Section 45(2)(a) and the subjective test in Galgalo Jarso Jillo and KRA v Reuwel Waithaka Gitahi, the Respondent had a reasonable basis to believe the ground existed.
Whether the procedure adopted was fair under Section 41 of the Employment Act.
No – the termination was procedurally unfair due to one day's hearing notice, a two-month (not three-month) PIP, absence of the two warnings required by the Respondent's own Manual, and a disciplinary committee without an Independent Line Manager contrary to Clause 7.4.
Although the Respondent explained the charges, heard the Claimant and determined his appeal, the court found the cumulative procedural defects fell below the mandatory threshold of Section 41. The one-day notice vitiated the right to be accompanied; RWII confirmed the PIP should be three months but no explanation was given for the two-month duration; the Manual's warnings and Clause 7.4 were not followed.
Whether the Claimant was defamed.
No – the Claimant adduced no evidence of the alleged defamatory statements, their maker, timing or recipients, and the court found none demonstrated.
Applying the definition of defamation from Winfield and Jolowicz and Parmitter v Coupland, the court noted the elements of a defamatory statement, publication to at least one person, and reference to the claimant. The Respondent denied publication to third parties, and the Claimant led no evidence on the alleged utterances, so the defamation claim failed entirely.
What relief flows from a declaration of unfair (procedurally unfair) termination.
A declaration of unfair termination plus compensation of two months' salary under Section 49(1)(c); all other heads of claim declined for want of particulars and evidence.
The court weighed 14 years of diligent service, absence of prior misconduct and the appeal, against the Claimant's substantial contribution to his own termination, and fixed compensation at two months' salary. The claims for service pay, ESOP, bonus, defamation damages and anticipatory benefits (pension, airtime, medical, life insurance, NSSF) all failed for lack of particulars, evidence or legal basis.
Legal principles established
#- For a termination to pass muster, the employer must prove both a valid and fair reason and procedural fairness.
- The employer need only prove a reasonable basis for genuinely believing the ground for termination exists, on a balance of probability.
- Where poor performance is the reason for termination, the employer bears a higher level of proof and must demonstrate a performance evaluation policy and measures taken to address poor performance.
- One day's notice of a disciplinary hearing is too short and unreasonable, vitiating the hearing.
- An employer must accord an employee the full typical duration of a Performance Improvement Plan before deciding on termination; a shortened PIP vitiates the process.
- An employer must comply with its own disciplinary policy, including issuing prescribed warnings and constituting the disciplinary committee as the policy requires.
Court orders
#- 1.Declaration that termination of employment was unfair.
- 2.Compensation equivalent of two (2) months' salary (the Claimant's gross salary being Kshs.856,628.45) under Section 49(1)(c) of the Employment Act.
- 3.Each party to bear their own costs.
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v Safaricom Limited (Cause E012 of 2022) [2024] KEELRC 1801 (KLR)", Case Analysis (2024). Cause No E012 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1801/eng@2024-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.