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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated 18th June 2018)· [2024] KEELRC 1985 (KLR)

Kamau v Del Monte Kenya Limited (Cause 1070 of 2018) [2024] KEELRC 1985 (KLR)

Employment and Labour Relations Court
31 July 2024
LNLinnet Ndolo
1,503 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled Del Monte unfairly sacked a sick employee for poor performance without support or adequate time to improve.

What this practically means

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Executive summary

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The Claimant, Nancy Wanjiku Kamau, was employed by the Respondent, Del Monte Kenya Limited, as Export Sales Manager and her employment was terminated on 24th May 2018 on grounds of failure to achieve regional export sales targets, following a Performance Improvement Plan instituted on 29th December 2017, a show-cause letter dated 3rd May 2018 and a disciplinary hearing on 11th May 2018. She claimed a declaration that the termination was unlawful and unfair, compensation and costs, alleging harassment linked to an illness that kept her in and out of hospital during the review period. The Respondent maintained that due process was followed and itemised her terminal dues. The Court framed two issues: whether the termination was lawful and fair, and whether the Claimant was entitled to remedies. Applying established authority on poor-performance terminations, the Court held that an employer must prove the employee knew applicable performance standards and was given support and reasonable time to improve. Finding the Claimant was unwell and unsupported - including unpaid vehicle allowance arrears of Kshs 260,000 - and that only one PIP review preceded a 24-hour show-cause notice and hearing, the Court found the termination substantively and procedurally unfair. It awarded six months' salary, Kshs 1,159,200, with interest at court rates from the date of judgment, and costs to the Claimant. Judgment was delivered virtually at Nairobi on 31st July 2024 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether termination on grounds of poor performance was substantively and procedurally fair

Holding

The termination was substantively and procedurally unfair because the employer placed a chronically ill employee on a PIP without facilitative support, conducted only one PIP review, issued a 24-hour show-cause notice, and proceeded to termination

Reasoning

The Court noted the Claimant's documented illness during the review period and the employer's failure to pay vehicle allowance and mileage arrears, undermining facilitative support. Case law requires the employer to prove the employee knew performance standards and received support and reasonable time to improve. Placing a sick employee on a PIP and rushing through one review, a 24-hour notice and a hearing rendered the process unreasonable and the termination unfair.

p. 4
02

Whether the Claimant was entitled to compensation

Holding

The Claimant was awarded six months' salary as compensation, considering length of service and the employer's failure to accord support

Reasoning

In exercising discretion on compensation, the Court considered the Claimant's length of service and the Respondent's failure to provide the necessary support for performance improvement, arriving at the equivalent of six months' gross salary.

p. 5

Legal principles established

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  • An employer seeking to terminate on grounds of poor performance must show the employee was aware of applicable performance standards and was given facilitative support and reasonable time to improve
  • A Performance Improvement Plan should not be imposed on an employee who is unwell and unable to cope with its pressure; procedural requirements vary materially between misconduct and poor-performance terminations

Court orders

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  1. 1.Award of six (6) months' salary in compensation for unlawful and unfair termination of employment
  2. 2.Judgment entered in favour of the Claimant in the sum of Kshs 1,159,200
  3. 3.Interest on the award at court rates from the date of judgment until payment in full
  4. 4.Claimant awarded the costs of the case
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment claim)

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, "Kamau v Del Monte Kenya Limited (Cause 1070 of 2018) [2024] KEELRC 1985 (KLR)", Case Analysis (2024). Not stated in judgment (Memorandum of Claim dated 18th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1985/eng@2024-07-31

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