Simiyu v Boc Kenya Plc (Cause E057 of 2021) [2024] KEELRC 2185 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair
The Court found the respondent accorded the claimant procedural fairness; he was invited to an inquiry, responded, was heard and appealed
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.
Whether poor performance was a valid and fair reason for termination
Yes - the claimant's repeated placements on PIP (2014, 2015/2016 and 2019) established a poor performance track record justifying termination
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.
Whether the claimant was discriminated against
No - the claimant merely alleged discrimination without facts to support it, so the burden did not shift to the respondent
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.
Legal principles established
#- 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
#- 1.The claim in its entirety is dismissed with costs
- 2.The respondent will issue the claimant with a certificate of service
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.