1. The Claimant filed his statement of claim dated 21st May, 2015 and pleaded inter alia as follows: -
a. The Claimant was employed by the Respondent as an Operations and Maintenance Regional Manager on or about 29th March, 2012 for a period of one (1) year whose contract was renewable upon such expiration.
b. The Claimant averred that the contract of employment vide an addendum dated 8th July,2013 was amended to reflect that the Claimant’s job title was Head of Department, Operations and Maintenance. It provided job description as well as a raise in salary and other benefits.
c. The Claimant worked for the Respondent diligently and with loyalty until 29th January, 2015 when the Respondent without notice or lawful cause terminated the Claimant’s employment.
d. The Claimant averred that the Respondent’ reasons for termination were baseless as set out in the termination letter. He stated that the issue of low RX was attributed to fiber cuts occasioned by KPLC, road constructors, private developers, aging connectors at the customer’s terminal equipment’s and splitter units. That there were no extra machines for the teams and the team deployed by the Claimant handled all tickets on open manholes promptly. The delay in repair was occasioned by the subsidiary company ADPOWER which is contracted to repair them and the same had been communicated to the management during network meeting held every Wednesday.
e. The Claimant further averred that he was summoned vide an email dated 28th January,2015 for a disciplinary meeting on the 29th January,2015. The Communication did not provide the allegations lodged against him nor the maintenance issues expected to reply to.
f. He contended that there was no lawful and reasonable ground for the Respondent to summarily dismiss him without notice hence the termination of his employment was unlawful and unfair. The said termination was against clause 14 and 17 of the Employment contract.
g. That the Respondent did not give him a fair hearing as per section 41 of the Employment Act. He was not accorded sufficient time as well as allegations lodged against him to enable him defend himself against the allegations of non-performance laid against him.
h. The Claimant further averred that according to the contract of employment he was entitled to leave or pay where no such leave was taken and he claimed leave pay for the period he worked in the sum of Kshs 440,000/=. He claimed damages for unfair termination as provided for under section 49 of the Employment Act. He also claimed remainder of his contract pay, service pay among others.
2. The Claimant in the upshot prayed for the following against the Respondent;
a. A declaration that the termination of his employment was unlawful, illegal and thus null and void.
b. Damages for unlawful and unfair termination of employment equivalent to 12 months salary.
c. Damages for the period remaining in his contract in the sum of Kshs 660,000/=
d. Leave pay Kshs 440,000/=
e. Costs of the suit and interests.
3. The Respondent filed its statement of Response dated 6th July, 2015 and they averred inter alia as follows;
i. The Respondent denied the contents of the claim, admitted the fact that it had employed the Claimant and denied that the Claimant’s dismissal was baseless, wrongful and unlawful nor effected without any reason and fair hearing.
ii. The Respondent averred that the Claimant’s services were terminated in summary manner when it was discovered that he had low -RX in the performance of his duties as a senior Manager holding the position of Head of Maintenance which he admitted to as one of the challenges he was facing.
iii. The Respondent averred that the Claimant was accorded a fair hearing on 29th Janaury,2015 by the disciplinary panel at which meeting his performance was discussed and found to be wanting. That before the decision to terminate his services was effected in accordance with the Company policies and legal requirements of the Employment Act after which he was fully paid his dues leading to his execution of a final payment and disclaimer/discharge voucher.
iv. The Respondent further averred that the Claimant had no outstanding leave days to warrant the payment of Kshs 440,000/= as claimed neither was he guaranteed employment up to the end of his contract period if he did not perform to the satisfaction of his employers the Respondent.
v. The Respondent denied breaching any provisions of employment contract nor Employment Act as alleged by the Claimant. That the Claimant was not entitled to leave pay, gratuity or service pay for the period worked. It prayed for the Claimant’s claim to be dismissed with costs.
4. The Claimant’s case was heard on 6th December, 2022 before Hon. Lady Justice Monica Mbaru where the Claimant testified and adopted his witness statement and documents filed as his evidence in chief.
5. CWI testified that he was dismissed wrongly by the Respondent as the Respondent did not follow the due procedure. There was neither verbal nor written warning before dismissal.
6. It was further his evidence that he was on 2 days sick off and when he reported on 29th January 2015, he found email inviting him for disciplinary hearing. He was not aware of any allegations against him prior to the invitation.
7. CW1 testified that he was asked to call someone of his choice to the meeting but he could not call anyone at that time. He was emotionally disturbed and the hearing proceeded. He had no adequate time before the Disciplinary hearing.
8. CW1testified that the outcome was a dismissal and he got a letter by 3 pm and left the Respondent premises. He was paid his dues but sought compensation as there was no justice, it was wrongful and he was not prepared.
9. On cross examination the CW1 acknowledged that he took responsibility for the lapses of his team. That he did not object to the timelines of the disciplinary hearing. That at the hearing three issues were discussed, he gave his explanation which the Respondent found inadequate and dismissed him.
10. CW1 confirmed that clause 13 of the contract provided for warning. It was further his evidence that there was no gross misconduct and no poor performance on his part even though that was stated in his termination letter. He admitted signing the letter to confirm that he had no other claims but was in court since proper procedure was not followed.
11. On re-exam CW1 confirmed that he was called to the hearing vide an email which did not have the charges. The contract provided for the procedure for hearing which the Respondent did not follow. There was no warning or show cause letter. He signed the discharge at the disciplinary hearing and was not allowed enough time to prepare his defence. The disciplinary hearing was not properly constituted because there was no neutral person.
12. The Respondent case on the other hand was heard on 25th May, 2023 before this court. It called one witness, the Chief Legal Regulatory Affairs of the Respondent who adopted his witness statement and the documents filed in court as his evidence in chief.
13. RW1 testified that had worked for the Respondent from 2012 to 2015 and that he knew the Claimant who was the Operations and Maintenance Regional Manager later promoted to Head of Maintenance.
14. RW 1 testified that in 2014 they had an issue with the claimants performance. Three main issues were identified. That is, low RX, open manholes and tooling for maintenance team. These issues were raised with the Claimant vide emails and the Claimant took responsibility but did not improve. He was therefore summoned to a disciplinary hearing. He had earlier been given notice to show cause. The claimant was asked to come to the disciplinary hearing with representative of his choice but he opted not to.
15. After the disciplinary hearing, a decision was made to terminate the Claimant. The reasons for termination and his terminal dues were stated in the termination letter. The claimant signed for the termination letter and was paid his dues. It was therefore his evidence that the claimant had no claim against the Respondent and the same should be dismissed.
16. In cross examination RW1 clarified that the Notice to show cause was issued on 28/1/2105 via email and that all correspondences were via email apart from the termination letter and further that the issues had been articulated on emails of 17/1/2014 and 11/2/2014 and further that the email of 28/1/2015 did not expressly mention poor performance. CW1 further stated that they did not issue a separate notice to show cause to the claimant.
17. RW1 clarified that clause 14 of the contract was in force and he was aware of the procedure thereunder. He was not aware if a note was left in the Claimant’s file. The warnings had not been availed to the court.
18. RW1 clarified that clause 14 ought to be followed in cases of poor performance. That is to say an employee not performing was to be put on performance improvement plan. It was further his evidence that the Claimant was sufficiently trained between 2024-2015 and the training ran throughout the year.
19. RW1 clarified that an email by General Manager of 21/1/2025 to the Claimant stated that he would be seeking Claimant’s resignation for lack of commitment. The Claimant responded to the accusations of poor performance and admitted challenges at the disciplinary hearing.
20. RW1 admitted to never informing the Claimant of his right of appeal in the termination letter but stated that the Claimant had a copy of the contract. That the Claimant was terminated on grounds of poor performance. That the Respondent adhered to procedure in clause 14 and 17.
21. In re-exam RW 1 stated that there was no provision that there must be warning before dismissal and that the Claimant was notified of the hearing and grounds as per clause 17. The Claimant was paid in lieu of notice.
CLAIMANTS’ SUBMISSIONS
22. On the issue of whether the claimant was given a fair hearing, he submitted that it was not enough to be offered a hearing, the same had to be a fair hearing and the employee was to raise his defence before termination.
23. It was the Claimant’s submission that he was accorded a hearing but the said hearing was not fair and fell below the required threshold of a fair hearing. He was not informed of the grounds on which he being subjected to disciplinary hearing prior to the hearing. There was no notice to show cause as required and the charges were not read to him during the hearing.
24. It was his case that it was not contested that he was informed of the disciplinary hearing on 28th January,2015 and less than 24 hours later he was already summarily dismissed and issued with a letter of termination dated 29th Janaury,2015. According to him, hearing on 29th January,2015 was just a sham conducted by the Respondent when it had already made up its mind to unfairly terminate his employment.
25. The claimant relied on section 41 of the Employment Act on the issue of notification and hearing before termination on grounds of misconduct. He further relied on the cases of Charles Oyunge Onkware v Telkom Kenya Limited (2016) eKLR, Kenya Plantation and Agricultural Workers Union v Eastern Produce(K) Limited cause 22 of 2019(20220 KEELRC 1302(KLR) (21 July 2022 (Judgment) and National Bank of Kenya v Samuel Nguru Muthonya (2019) eKLR.
26. It was his case that the Respondent failed to comply with provisions of section 41,43, 44 and 45 of the Employment Act and there was no procedural fairness in the hearing hence unfair.
27. On the issue of whether the Respondent complied with clause 14 and 17 of the employment contract the Claimant submitted that the Respondent’ s sole witness conceded to never following the disciplinary procedure provided for under clause 14- as no note was kept in his file on the four steps to be taken by the Respondent. He was not given opportunity to appeal as per clause 14(2) since the termination letter did not notify him of the same.
28. It was his case that clause 17 on notification was also not followed by the Respondent. And that the clause was a replica of section 41 of the Employment Act. The Respondent breached these two clauses hence the termination unlawful and illegal.
29. On the issue of damages he was entitled to, the Claimant submitted that he was entitled to damages for unfair termination under section 49 of the Employment Act and relied on the above cited case of Kenya Plantation and Agricultural Workers Union. He claimed his unpaid leave and all prayers in his claim.
RESPONDENT’S SUBMISSIONS
30. On the other hand the Respondent filed its submissions dated 13th July, 2023 and on the issue of whether the termination was unlawful the Respondent submitted that it lawfully terminated the Claimants’ service summarily upon discovering that he had low RX in the performance of his duties.
31. That the Claimant was accorded a fair hearing on the 29th Janaury,2015 where his performance was found wanting before he was terminated. It was the Respondent’s case that the Claimant was paid his lawful dues before he was terminated.
32. On the issue of damages for unlawful and unfair termination the Respondent submitted that the Claimant’s claim of leave pay and service pay were unwarranted as he was paid his dues and that he had no outstanding leave days. The Claimant did not justify or demonstrate that he was entitled to those dues in his claim.
33. On the issue of remedies available for the Claimant the Respondent submitted that the remedy for damages was unavailable having been paid his dues. The Respondent relied on the cases of Joseph Opiyo Oranga v Prime- Steel Mills Limited ELRC Cause no. 785 of 2016 and Julius Mutana Ngigi c=v Cobra Security Limited ERCL Cause No. 338 of 2017 to submit that the Claimant was not entitled to reliefs sought.
DETERMINATION
34. The Court has reviewed and considered the pleadings, testimonies and submissions by both counsel in support and opposition to the case. It has also considered authorities relied on by Counsels.
35. The Court comes up with two main issues;
a. Whether the Claimant’s termination of employment was unfair and unlawful
b. Whether the Claimant is entitled to the reliefs sought.
36. In this instant case, the Respondent alleged that they terminated the Claimant on grounds of poor performance due to low RX, tooling for maintenance team and open manholes. The reasons were listed in the termination letter.
37. The Claimant’s case was that the ground of poor performance was a sham because the Respondent did not comply with clause 14 on the steps to be taken in such a case and that the hearing of 29th January was a sham and unfair.
38. Poor performance under Section 44 (4) (g) of the Employment Act, 2007 is one of the grounds for summary dismissal. The Respondent produced email but no warning letters as provided for under clause 14 of the employment contract. The Claimant was to be given first a verbal warning then a written warning, then final warning. The Respondent during hearing acknowledged that none of the above was complied with before dismissal and no note was left in the Claimant’s file.
39. The Respondent’s witness also confirmed that an employee who was performing poorly was to be placed on performance improvement plan which the Respondent did not comply with in this case.
40. The Respondent did not provide any performance appraisals to show that the Claimant was rated poorly over the time.
41. In the case of Peter Kamau Mwaura and Another Vs. National Bank of Kenya (2020) eKLR the court quoted the case of Jane Samba Mukala Vs. Oltukai Lodge Limited [2010] KLR 225 and observed that–
“Where poor performance is shown to be reason for termination, the employer is placed at a high level of proof as outlined in section 8 of the Employment Act, 2007. The employer must show that in arriving at the decision of noting the poor performance of an employee, they had put in place an employment policy or practice on how to measure good performance as against poor performance.”
42. Section 43 requires the employer to prove the reason for termination; the reason to be valid and fair and if the employer fails to do so the termination shall be deemed unfair under Section 45 of the Act.
43. In the case of Prof. Macha Isunde vs Lavington Security Guards Limited [2017] eKLR, the Court of Appeal stated:
“There can be no doubt that the Act, which was enacted in 2007, places a heavy obligation on the employers in matters of summary dismissal (emphasis mine) for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for terminating (section 43) – prove that the grounds are justified (section 47 (5), among other provisions. A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination.”
From the foregoing the court finds that the termination of Claimant’s employment was not justified as the respondent did not provide sufficient evidence to demonstrate that the claimant was performing poorly and that he was subjected to the processes set out in his employment contract for an employee who is not performing. The Claimant is therefore entitled to damages for unfair termination.
44. That having been said, the claimant in this case had worked for the respondent for about two years hence an 6 months’ salary as compensation for unfair termination would be adequate in the circumstances.
45. The Claimant has claimed leave pay at Kshs. 440,000/= while the Respondent has maintained that the Claimant did not have any outstanding leave days. The duty to keep employment records lies with the Respondent They did not produce these records. I therefore allow this prayer.
46. For service pay and payment for the remainder of contract, the contract was not a fixed term contract hence this payment cannot be reasonably ordered as the contract may have been terminated for any other reason than termination. On service pay, the claimant did not attach his pay slips to illustrate that the respondent did not deduct NSSF. In any event, the Claimant was paid severance pay upon termination.
47. In conclusion the Claimant’s claim is hereby be allowed as follows:
i. 6 months Compensation for unlawful and unfair termination ………………………Kshs. 1,320,000
ii. Leave pay ……………………….Kshs. 440,000 Total …………………………………….1,760,000
iii. Costs of the suit.
48. It is so ordered
Dated at Nairobi this 14th day of December, 2023
Delivered virtually this 14th day of December, 2023