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ELRCDismissedCause No E057 of 2021· [2024] KEELRC 2185 (KLR)

Simiyu v Boc Kenya Plc (Cause E057 of 2021) [2024] KEELRC 2185 (KLR)

Employment and Labour Relations Court
6 September 2024
5,792 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld dismissal for poor performance because the employer gave proper notice, a hearing, an appeal, and had documented repeated performance improvement plans.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a Sales Manager from October 2013 and later redeployed as SHEQ Manager and then Officer SHEQ, was terminated on 17 March 2020 following an incapacity inquiry held on 3 March 2020 on grounds of poor performance relating to audit preparation, environmental management and other SHEQ duties. He challenged the termination as procedurally unfair, alleging he was not given a show-cause notice, was misled about the nature of the inquiry, was denied an opportunity to defend himself, that the charges were vague, that expired PIPs were relied upon, and that he was discriminated against because a sales manager was retrenched while he was terminated. He sought declarations, damages, twelve months' compensation, salary arrears, STIP bonus, pension and other benefits. The Respondent maintained that the termination was lawful and for valid reasons of poor performance after repeated Performance Improvement Plans. The Court framed two issues: whether the termination was unfair and unlawful, and whether the Claimant was entitled to the reliefs sought. The Court found the Claimant had a history of poor performance, having undergone four PIPs, that poor performance is a valid and fair reason for termination under sections 41, 44 and 45 of the Employment Act, and that the Respondent accorded him procedural fairness through notice, a hearing and an appeal. The discrimination claim failed because the Claimant presented only a bare allegation. The entire claim was dismissed with costs, but the Respondent was ordered to issue the Claimant with a certificate of service.

Key legal issues

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01

Whether the termination was procedurally fair

Holding

The Court found the respondent accorded the claimant procedural fairness; he was invited to an inquiry, responded, was heard and appealed

Reasoning

The Court noted the claimant received a letter dated 26 February 2020 inviting him to an incapacity inquiry on 3 March 2020, responded on 2 March 2020, attended the hearing where the issues in the letter were discussed, and appealed. The respondent's Disciplinary Code contained elaborate procedures which the court found were followed. The Court held that the requirement is notice, hearing and reasons issued before the termination decision, and was satisfied these were met.

p. 12
02

Whether poor performance was a valid and fair reason for termination

Holding

Yes - the claimant's repeated placements on PIP (2014, 2015/2016 and 2019) established a poor performance track record justifying termination

Reasoning

The claimant conceded he underwent four PIPs and that his performance did not improve. Sections 41, 44 and 45 of the Employment Act entitle an employer to discipline employees for poor performance since capability is an essential requirement of the employment contract. The Court found the history of PIPs was not a good performance record and the termination on account of poor performance was justified.

p. 11
03

Whether the claimant was discriminated against

Holding

No - the claimant merely alleged discrimination without facts to support it, so the burden did not shift to the respondent

Reasoning

While section 5 of the Employment Act shifts the burden to the employer once an employee presents prima facie evidence of discrimination, the employee must first present sufficient facts. The claimant only argued that the sales manager was retrenched while he was terminated, without demonstrating comparable circumstances such as whether the sales manager had also been on PIP. The allegation was therefore bare and failed.

p. 11

Legal principles established

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  • Termination for poor performance is a valid and fair reason for termination where the employer follows due process
  • Before termination on grounds of poor performance, the employer must give notice, a hearing and reasons, and the notice must issue before the decision to terminate
  • An employee alleging discrimination must present sufficient supporting facts; a bare allegation does not shift the burden of proof to the employer

Court orders

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  1. 1.The claim in its entirety is dismissed with costs
  2. 2.The respondent will issue the claimant with a certificate of service

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 44
  • Employment Actsection 45
  • Employment Actsection 5 (including section 5(7))
  • Employment Actsection 40
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 47

Cases cited (11)

  • Banking Insurance and Finance Union (Kenya) vs Barclays Bank of Kenya Limited and Another
    (2016) eKLR
  • Maina Mwangi v Thika Cofiee Mills Limited
    [2014] eKLR
  • In Lydia Moraa Obara v Tusker Mattresses Limited
    [2021] eKLR
  • Sani v JSC
    (Cause 7 of 2019) [2022] KEELRC 4000 (KLR)
  • Barclays Bank of Kenya Ltd & Another v Gladys Muthoni & 20 Others
    [2018] eKLR
  • G M V v Bank of Africa Kenya Limited
    [2013] eKLR
  • Thomas Odol Ojwang versus Kenol Kobil Ltd
    [2015] eKLR
  • Janet Nyandiko versus Kenya Commercial Bank Limited
    [2017] eklr
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Musau Kivuva v Mastermind Tobacco Ltd
  • Nyangiry Okabanga Bwonditi v Ecobank (K) Ltd
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (sections 41, 43, 44 and 45 of the Employment Act; Articles 27, 41 and 47 of the Constitution invoked by the parties)

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, "Simiyu v Boc Kenya Plc (Cause E057 of 2021) [2024] KEELRC 2185 (KLR)", Case Analysis (2024). Cause No E057 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2185/eng@2024-09-06

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