Kandiyal v Canaan Factories Company Limited (Cause 6530 of 2020) [2024] KEELRC 1819 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
Termination for poor performance was not substantively justified as the Respondent proved no KPIs, no evaluation measures and no appraisal.
Sections 43 and 45 of the Employment Act require the employer to prove a valid and fair reason related to conduct, capacity or compatibility. The Respondent alleged below-par performance against KPIs but adduced no evidence that KPIs were ever issued, that performance was evaluated, or that measures existed to assess performance. Termination was verbal, with no termination letter, so the reason could not be discerned. The evidential burden was not discharged.
Procedural fairness
The Respondent failed to comply with Section 41 of the Employment Act; no hearing or notification process was undertaken.
Section 41(1) requires notification of allegations and an opportunity to make representations before termination. There was no evidence or indication that the Claimant was subjected to any such process prior to termination. Applying the four elements from Postal Corporation of Kenya vs Andrew K. Tanui, the Respondent did not prove compliance with the spirit of Section 41 as read with Section 45(2)(c), rendering the termination procedurally unfair.
Probationary status and notice pay
The Claimant was not on probation as at 30th January 2020 and was entitled to three months' notice or pay in lieu.
Section 42(2) caps probation at six months, extendable only by mutual agreement. The Respondent's assertion of a one-year probation is not supported by the contract, which merely provided for evaluation after one year, and would in any event be contrary to law. No evidence of mutuality to extend probation existed. Consequently the Claimant was a regular employee entitled to three months' notice or payment in lieu.
Legal principles established
#- An employer bears the burden of proving both substantive justification and procedural fairness for termination; where no KPIs, evaluation measures or evidence of appraisal exist, termination for poor performance is not substantively justified.
- A probationary period cannot exceed six months, extendable by a further six months only with the employee's agreement; a purported one-year probation is contrary to law.
- Where an employee allegedly deserts duty, the employer must take reasonable steps to ascertain the employee's whereabouts.
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent
- 2.Three (3) months' salary in lieu of notice being Kshs 900,000.00
- 3.Compensatory damages of Kshs 600,000.00 equivalent to two (2) months' gross salary
- 4.Total award of Kshs 1,500,000.00 with interest at court rates from the date of Judgment until payment in full
- 5.Respondent to issue the Claimant with a Certificate of Service within 30 days from the date of the Judgment
- 6.Claimant to have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kandiyal v Canaan Factories Company Limited (Cause 6530 of 2020) [2024] KEELRC 1819 (KLR)", Case Analysis (2024). Memorandum of Claim filed 8th December 2020 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1819/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.