1. The claimant pleaded inter-alia that;
a) At all material times to this cause, the claimant was employed by the respondent as a sales representative with effect from January, 2015. As at the time of the claimant unfair termination of employment he was earning a gross salary of Kenya shillings Nineteen Thousand Hundred and fifty four shillings only (Kshs.19,154/-)
b) The claimant served the respondent with loyalty, diligence and with full dedication and commitment until 15th February, 2016 when the respondent unfairly, unprocedurally and unlawfully terminated his services and refused to pay his terminal benefits.
c) The respondent alleged that the claimant was not meeting his sales target as required. The claimant avers that he used to render his services to his level best to the respondent. That the allegation cited by the respondent of the alleged low sales target is not true.
d) The claimant avers that before he was unfairly terminated from his employment, he was not given an opportunity to defend himself and/ or call witnesses in his defense, The claimant was condemn unheard.
e) The Claimant submits that the Respondent terminated his services without following the right procedure laid down in the Employment Act, 2007
2. As a result the claimant sought terminal benefits as itemized under paragraph 12 of the statement of claim.
3. The respondent filed a statement of response and averred among others that;-
i. The Respondent denies the contents of paragraph 3 of the memorandum of claim and wish to state that the clamant was employed by the Respondent in the year 2015 as sales personnel and at the time of termination of employment the claimant was earning a basic salary of Kshs. 15,700/=.
ii. The Respondent denies the contents of paragraph four of the Claim and specifically that the Claimant served the Respondent diligently and now state that the claimant was very poor and lazy at his work and used to arrive at work late and could not meet his sales target. The claimant was given numerous warnings verbally and in writing and further the respondent issued him with a show cause letter, despite all this the claimant failed or declined to work as stipulated hence leading to his termination from employment,
iii. The Respondent denies the contents of paragraph 5-8 of the Claim and state that prior to the termination of employment the claimant was accorded a fair hearing on several occasions but failed to change and grew from bad to worse hence necessitating the said termination.
iv. The respondent contends that termination of employment was properly within the provisions of the Employment Act, further that justice and equity were employed at all material time for the following reasons:
a) The procedure as laid down under the provisions of Section 35 and 36 of the Employment Act was followed. Prior to the termination the claimant was given verbal warnings as well as two warnings in writing and a show cause latter, all informed of his conduct and its consequences one of which was termination of employment.
b) All through such period of employment the respondent gave the claimant several chances to change but he went from bad to worse.
c) This was done after several warnings to the claimant and a show cause letter issued to him on why action should not be taken against him to which he failed to offer satisfactory and /or compelling reasons, hence the termination.
d) The claimant was paid all his dues together with the one month’s salary in lieu of Notice with all other dues evidenced by the tabulation filed as document no. 1 of the respondent’s list of documents and a final salary voucher dated 15/2/2016.
v. The contents of paragraph 12 of the claim are denied in toto, and without prejudice the respondent contend that all the terminal dues were paid to the claimant to which he acknowledged by signing the final salary voucher and the amounts stated by the claimant are baseless and thus the respondent will subject the claimant to strict proof.
4. At the oral hearing the claimant stated among others that he recorded a witness statement on 11th February, 2017 which he relied on as his evidence in chief. He also relied on the documents filed with the claim.
5. According to him, he was employed on 2nd January, 2015 as a sales person at a monthly salary of Kshs.19,154/= and worked until 2016 February. It was his evidence that he was terminated because he asked for retirement and that he was accused of not performing his work well. Further, he was never heard before dismissal and that he was not issued with a notice of termination. He denied underperforming and stated that he was never given any targets. It was his evidence that he was to market respondent’s products and he did his best and sold almost Kshs.200,000/= per month.
6. According to the claimant, he brought in Baraton University and sold to them overKshs.50,000/=. He brought also Boma Inn where he sold to them about Kshs.140,000/=. He brought in more than fifty clients. The respondent took the diary where he recorded these clients.
7. Regarding warning he said that he received a warning letter dated 24th December, 2015. According to him on 24th January, 2015 he asked to retire but was instead issued with a warning letter. He received a second warning letter and this was also when he asked to retire.
8. The claimant further stated that he received the show cause letter and responded to it. He denied diverting clients from the respondent and that he was dismissed after responding to the show cause letter. He denied he was heard before the dismissal and that upon termination, he was paid Kshs.31,322/= and he was not issued with certificate of service.
9. Regarding his final dues, he said he was not paid from 1st to 16th February, 2016 and never paid in lieu of notice. He further stated that he never went on leave for the period he worked. About working hours he stated that he used to report to work at 8.30am and work until 5.30pm. The trips to Kitale, Kericho and Kapsabet required him to work overtime. He however did not have the documents which showed he worked overtime.
10. In cross-examination he stated that he was employed on 2nd January, 2015 and the warning letter was issued on 24th January, 2015. According to him, he was warned because he wanted to retire after twenty days. It was his evidence that he had the warning letter but did not file the same.
11. Concerning his job, he said he gave it his best and that he recorded his performance in a diary and that the diary was with the respondent.
12. Regarding communication he stated that he sold to World Vision but was not paid his 10% commission. He however stated that there was no agreement in writing over commission.
13. Concerning salary, he stated that he was paid on 15th and at the end of the month. He was not paid for January, 2016 for 15 days worked in February, 2016. He however said that he signed the salary voucher and that he was paid for half a month in February.
14. His work was to look for orders from shops and whenever he got the orders he would diarise and forward to the respondent. Asked about the Ark restaurant, he stated that he could not remember the same and that they never gave him any order. All orders he received he gave to the respondent and if there were delays, he would follow and further that delays were not his fault but the fault of the printing department.
15. The claimant further stated that his salary was Kshs.19,154/= and was never raised and according to him he was underpaid. The salary stated in the termination letter was Kshs.15,700. He further stated that he had no document to show he worked overtime.
16. The respondent’s witness Mr. Wandeep Singh stated that he was the respondent’s proprietor and that he recorded a statement on 17th May, 2017 and that he adopted the same as his evidence in chief. He also relied on the documents filed with the claim. It was his evidence that the claimant was a sales person and his duty was to bring sales. The sales people were given targets. It was Kshs,100,000/= per month. The claimant never sold over Kshs.200,000/= per month. He denied that the claimant brought in Boma Inn. For Baraton, they applied for a tender and for Dr. Shah, he owned a shop next door and he had known him for over twenty years.
17. Mr. Singh further stated that he had warned the claimant severally about his performance but there was no improvement. The claimant was heard before termination and was paid all his dues upon termination. His salary per month was ksh.15,700 and that he was paid for January and days worked in February. Mr. Singh denied that World Vision was the claimant’s client. They came directly and bought sports goods and not printing material which was the claimant’s line. Concerning commission, he stated that these were payable for sales representatives who brought more sales beyond the targets set. Regarding delays he stated that there could be delays in printing but these were supposed to be reported to him. For the claimant, the orders were not many. He was called by Ark Restaurant asking about their order but told them they had no such order from them. When he asked the claimant, he never gave a satisfactory answer meaning he took the order from the Restaurant and took it elsewhere. Concerning overtime, he stated that these were paid whenever worked.
18. In cross-examination he stated that the claimant was his employee and that his monthly pay was Kshs.15,200. He was terminated on 15th February, 2016 on account of non-performance. He had issued several warning letters to the claimant. He also learnt that the claimant was diverting business from the respondent and was not meeting targets. The records however were not before the court.
19. Regarding leave, it was his evidence that the claimant was paid ten days leave and he signed for it. He signed the final payment voucher and release letter. He however did not produce before the court the record of leave taken.
20. Concerning working hours it was his evidence that the claimant used to report to work at 8.30am and leave at 5.30pm. He would report to the office and proceed out for marketing. The respondent had clocking system, master roll and overtime card which was to be filled by staff. The records were however not produced before the court.
21. In re-examination he stated that he followed procedure before termination and further that the claimant never declared the order from the Ark Restaurant.
22. Under section 47(5) of the Employment Act, for any complaint for unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.
23. The claimant alleged that his termination was unfair because despite the fact that he was meeting his sales targets as required the respondent still terminated his service because of low sales target. He further complained that the respondent never gave him an opportunity to defend himself or call witness in his defence before he was terminated.
24. The respondent on the other hand justified the termination and produced two warning letters and a notice to show cause to the claimant and his response thereto. It is therefore not true that the claimant was condemned unheard.
25. The claimant was employed as a sales person. Further the respondent in the two warning letters reminded the claimant that from his work as a sales person he was required to bring in new clients in order to generate enough revenue to pay his salary. The claimant in his response to the show cause letter denied that he was not meeting targets. The claimant’s response was in the Court’s view, curt and terse and never attempted to demonstrate in what way he was meeting the targets. The claimant in his evidence before the court claimed that he brought business from Boma Inn, Baraton University and World Vision among others. One therefore wonders why it became difficult for the claimant to use these as examples of the businesses he brought in to meet his targets. The only reasonable conclusion would be that the claimant never brought in such business.
26. This court has stated previously that it is not within its realm to overanalyse the reason for which employment has been terminated. The test usually is the reasonable test. That is to say, would a reasonable employer put in the circumstances dismiss? If the answer be in the affirmative, the court will not interfere.
27. As observed above, the claimant was employed as a sales person, the respondent on more than one occasion issued the claimant with warning letters raising concern over his performance. These were followed with a notice to show cause to which as noted earlier, he tersely responded to and bordered on expressing shock that the respondent was accusing him of not meeting targets. Further, the claimant alleged that he brought in Boma Inn, Baraton and World Vision as businesses but he never saw it fit to use these to demonstrate his performance when confronted with accusation of underperformance. To this extent the court is satisfied the respondent reasonably justified the reason for terminating the claimant’s service on grounds of non-performance as required under Section 47(5) of the Employment Act.
28. Regarding procedural fairness, it was held in the case of Walter Ogal Anuro -vs- TSC[2013] eklr that for termination to pass the fairness test, it must be shown that there was not only substantive justification for termination but also procedural fairness. The Court of Appeal further in the case of KRA -VS Menginya Salim Murgani observed thus;
“there is ample authority that decision making bodies other than courts and bodies whose procedure are laid down by statute are masters of their own procedures. Provided they achieve the degree of fairness appropriate to their task, it is for them to decide how they will proceed.”
29. The claimant herein alleged that he was never called for any disciplinary hearing and never given an opportunity to call witnesses. Although the ideal ought to be a formal sitting. However, not every hearing must take this form to pass the procedural fairness test. Exchange of correspondence on a matter an employee has been actively interacting with extensively and clear on such employee’s mind could suffice as a hearing.
30. The claimant herein was issued with two warning letters on the issue of his performance and letter issued with a notice to show cause to which he tersely responded expressing surprise that he was being accused of not meeting targets and as observed he omitted to furnish any evidence in his response to the show cause letter how he met the target. This in the court’s view was good enough and no further formal hearing was necessary. To this extent the respondent met the procedural fairness test hence the termination is deemed fair.
31. The claimant made several heads of claim such as salary for the month of February, salary in lieu of notice, severance pay, annual leave, underpayment and overtime. The termination letter dated 15th February, 2016 which was acknowledged and signed by the claimant showed he was paid salary for half of February, one month salary in lieu of notice, severance (sic) pay and salary for ten days leave not taken. The claimant did not receive this payment under any protest or disclaimer. He cannot therefore raise the same claims again.
32. On the issue of under payment the claimant did not attach even a single payslip to show how much the respondent was paying him and further he did not produce his credentials to show his qualifications to match with the gazetted wage guidelines in order for the court to see if there was indeed any underpayment.
33. On the issue of overtime, the claimant did not come out clear in which area and approximately when and at what intervals he worked overtime. It is indeed correct that it was the responsibility of the employer to keep records but where an employee alleges overtime, it is important that he or she lays background about the nature of work being performed that required working overtime and at what intervals and the period the overtime was worked. A mere assertion that an employee worked overtime is not enough to shift the burden on the employer to produce records. The records may not be there because there was no overtime worked.
34. In conclusion the court finds the claim without merit and is hereby dismissed with costs.
It is so ordered.
Dated, Signed and Delivered virtually at Nairobi on this ………day
of……………………….…2023
Abuodha J. N.
Judge
In the presence of:-
……………………………………….. for the Claimant
…………………………………………for the Respondent
a) At all material times to this cause, the claimant was employed by the respondent as a sales representative with effect from January, 2015. As at the time of the claimant unfair termination of employment he was earning a gross salary of Kenya shillings Nineteen Thousand Hundred and fifty four shillings only (Kshs.19,154/-)
b) The claimant served the respondent with loyalty, diligence and with full dedication and commitment until 15th February, 2016 when the respondent unfairly, unprocedurally and unlawfully terminated his services and refused to pay his terminal benefits.
c) The respondent alleged that the claimant was not meeting his sales target as required. The claimant avers that he used to render his services to his level best to the respondent. That the allegation cited by the respondent of the alleged low sales target is not true.
d) The claimant avers that before he was unfairly terminated from his employment, he was not given an opportunity to defend himself and/ or call witnesses in his defense, The claimant was condemn unheard.
e) The Claimant submits that the Respondent terminated his services without following the right procedure laid down in the Employment Act, 2007
2. As a result the claimant sought terminal benefits as itemized under paragraph 12 of the statement of claim.
3. The respondent filed a statement of response and averred among others that;-
i. The Respondent denies the contents of paragraph 3 of the memorandum of claim and wish to state that the clamant was employed by the Respondent in the year 2015 as sales personnel and at the time of termination of employment the claimant was earning a basic salary of Kshs. 15,700/=.
ii. The Respondent denies the contents of paragraph four of the Claim and specifically that the Claimant served the Respondent diligently and now state that the claimant was very poor and lazy at his work and used to arrive at work late and could not meet his sales target. The claimant was given numerous warnings verbally and in writing and further the respondent issued him with a show cause letter, despite all this the claimant failed or declined to work as stipulated hence leading to his termination from employment,
iii. The Respondent denies the contents of paragraph 5-8 of the Claim and state that prior to the termination of employment the claimant was accorded a fair hearing on several occasions but failed to change and grew from bad to worse hence necessitating the said termination.
iv. The respondent contends that termination of employment was properly within the provisions of the Employment Act, further that justice and equity were employed at all material time for the following reasons:
a) The procedure as laid down under the provisions of Section 35 and 36 of the Employment Act was followed. Prior to the termination the claimant was given verbal warnings as well as two warnings in writing and a show cause latter, all informed of his conduct and its consequences one of which was termination of employment.
b) All through such period of employment the respondent gave the claimant several chances to change but he went from bad to worse.
c) This was done after several warnings to the claimant and a show cause letter issued to him on why action should not be taken against him to which he failed to offer satisfactory and /or compelling reasons, hence the termination.
d) The claimant was paid all his dues together with the one month’s salary in lieu of Notice with all other dues evidenced by the tabulation filed as document no. 1 of the respondent’s list of documents and a final salary voucher dated 15/2/2016.
v. The contents of paragraph 12 of the claim are denied in toto, and without prejudice the respondent contend that all the terminal dues were paid to the claimant to which he acknowledged by signing the final salary voucher and the amounts stated by the claimant are baseless and thus the respondent will subject the claimant to strict proof.
4. At the oral hearing the claimant stated among others that he recorded a witness statement on 11th February, 2017 which he relied on as his evidence in chief. He also relied on the documents filed with the claim.
5. According to him, he was employed on 2nd January, 2015 as a sales person at a monthly salary of Kshs.19,154/= and worked until 2016 February. It was his evidence that he was terminated because he asked for retirement and that he was accused of not performing his work well. Further, he was never heard before dismissal and that he was not issued with a notice of termination. He denied underperforming and stated that he was never given any targets. It was his evidence that he was to market respondent’s products and he did his best and sold almost Kshs.200,000/= per month.
6. According to the claimant, he brought in Baraton University and sold to them overKshs.50,000/=. He brought also Boma Inn where he sold to them about Kshs.140,000/=. He brought in more than fifty clients. The respondent took the diary where he recorded these clients.
7. Regarding warning he said that he received a warning letter dated 24th December, 2015. According to him on 24th January, 2015 he asked to retire but was instead issued with a warning letter. He received a second warning letter and this was also when he asked to retire.
8. The claimant further stated that he received the show cause letter and responded to it. He denied diverting clients from the respondent and that he was dismissed after responding to the show cause letter. He denied he was heard before the dismissal and that upon termination, he was paid Kshs.31,322/= and he was not issued with certificate of service.
9. Regarding his final dues, he said he was not paid from 1st to 16th February, 2016 and never paid in lieu of notice. He further stated that he never went on leave for the period he worked. About working hours he stated that he used to report to work at 8.30am and work until 5.30pm. The trips to Kitale, Kericho and Kapsabet required him to work overtime. He however did not have the documents which showed he worked overtime.
10. In cross-examination he stated that he was employed on 2nd January, 2015 and the warning letter was issued on 24th January, 2015. According to him, he was warned because he wanted to retire after twenty days. It was his evidence that he had the warning letter but did not file the same.
11. Concerning his job, he said he gave it his best and that he recorded his performance in a diary and that the diary was with the respondent.
12. Regarding communication he stated that he sold to World Vision but was not paid his 10% commission. He however stated that there was no agreement in writing over commission.
13. Concerning salary, he stated that he was paid on 15th and at the end of the month. He was not paid for January, 2016 for 15 days worked in February, 2016. He however said that he signed the salary voucher and that he was paid for half a month in February.
14. His work was to look for orders from shops and whenever he got the orders he would diarise and forward to the respondent. Asked about the Ark restaurant, he stated that he could not remember the same and that they never gave him any order. All orders he received he gave to the respondent and if there were delays, he would follow and further that delays were not his fault but the fault of the printing department.
15. The claimant further stated that his salary was Kshs.19,154/= and was never raised and according to him he was underpaid. The salary stated in the termination letter was Kshs.15,700. He further stated that he had no document to show he worked overtime.
16. The respondent’s witness Mr. Wandeep Singh stated that he was the respondent’s proprietor and that he recorded a statement on 17th May, 2017 and that he adopted the same as his evidence in chief. He also relied on the documents filed with the claim. It was his evidence that the claimant was a sales person and his duty was to bring sales. The sales people were given targets. It was Kshs,100,000/= per month. The claimant never sold over Kshs.200,000/= per month. He denied that the claimant brought in Boma Inn. For Baraton, they applied for a tender and for Dr. Shah, he owned a shop next door and he had known him for over twenty years.
17. Mr. Singh further stated that he had warned the claimant severally about his performance but there was no improvement. The claimant was heard before termination and was paid all his dues upon termination. His salary per month was ksh.15,700 and that he was paid for January and days worked in February. Mr. Singh denied that World Vision was the claimant’s client. They came directly and bought sports goods and not printing material which was the claimant’s line. Concerning commission, he stated that these were payable for sales representatives who brought more sales beyond the targets set. Regarding delays he stated that there could be delays in printing but these were supposed to be reported to him. For the claimant, the orders were not many. He was called by Ark Restaurant asking about their order but told them they had no such order from them. When he asked the claimant, he never gave a satisfactory answer meaning he took the order from the Restaurant and took it elsewhere. Concerning overtime, he stated that these were paid whenever worked.
18. In cross-examination he stated that the claimant was his employee and that his monthly pay was Kshs.15,200. He was terminated on 15th February, 2016 on account of non-performance. He had issued several warning letters to the claimant. He also learnt that the claimant was diverting business from the respondent and was not meeting targets. The records however were not before the court.
19. Regarding leave, it was his evidence that the claimant was paid ten days leave and he signed for it. He signed the final payment voucher and release letter. He however did not produce before the court the record of leave taken.
20. Concerning working hours it was his evidence that the claimant used to report to work at 8.30am and leave at 5.30pm. He would report to the office and proceed out for marketing. The respondent had clocking system, master roll and overtime card which was to be filled by staff. The records were however not produced before the court.
21. In re-examination he stated that he followed procedure before termination and further that the claimant never declared the order from the Ark Restaurant.
22. Under section 47(5) of the Employment Act, for any complaint for unfair termination of employment or wrongful dismissal, the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.
23. The claimant alleged that his termination was unfair because despite the fact that he was meeting his sales targets as required the respondent still terminated his service because of low sales target. He further complained that the respondent never gave him an opportunity to defend himself or call witness in his defence before he was terminated.
24. The respondent on the other hand justified the termination and produced two warning letters and a notice to show cause to the claimant and his response thereto. It is therefore not true that the claimant was condemned unheard.
25. The claimant was employed as a sales person. Further the respondent in the two warning letters reminded the claimant that from his work as a sales person he was required to bring in new clients in order to generate enough revenue to pay his salary. The claimant in his response to the show cause letter denied that he was not meeting targets. The claimant’s response was in the Court’s view, curt and terse and never attempted to demonstrate in what way he was meeting the targets. The claimant in his evidence before the court claimed that he brought business from Boma Inn, Baraton University and World Vision among others. One therefore wonders why it became difficult for the claimant to use these as examples of the businesses he brought in to meet his targets. The only reasonable conclusion would be that the claimant never brought in such business.
26. This court has stated previously that it is not within its realm to overanalyse the reason for which employment has been terminated. The test usually is the reasonable test. That is to say, would a reasonable employer put in the circumstances dismiss? If the answer be in the affirmative, the court will not interfere.
27. As observed above, the claimant was employed as a sales person, the respondent on more than one occasion issued the claimant with warning letters raising concern over his performance. These were followed with a notice to show cause to which as noted earlier, he tersely responded to and bordered on expressing shock that the respondent was accusing him of not meeting targets. Further, the claimant alleged that he brought in Boma Inn, Baraton and World Vision as businesses but he never saw it fit to use these to demonstrate his performance when confronted with accusation of underperformance. To this extent the court is satisfied the respondent reasonably justified the reason for terminating the claimant’s service on grounds of non-performance as required under Section 47(5) of the Employment Act.
28. Regarding procedural fairness, it was held in the case of Walter Ogal Anuro -vs- TSC[2013] eklr that for termination to pass the fairness test, it must be shown that there was not only substantive justification for termination but also procedural fairness. The Court of Appeal further in the case of KRA -VS Menginya Salim Murgani observed thus;
“there is ample authority that decision making bodies other than courts and bodies whose procedure are laid down by statute are masters of their own procedures. Provided they achieve the degree of fairness appropriate to their task, it is for them to decide how they will proceed.”
29. The claimant herein alleged that he was never called for any disciplinary hearing and never given an opportunity to call witnesses. Although the ideal ought to be a formal sitting. However, not every hearing must take this form to pass the procedural fairness test. Exchange of correspondence on a matter an employee has been actively interacting with extensively and clear on such employee’s mind could suffice as a hearing.
30. The claimant herein was issued with two warning letters on the issue of his performance and letter issued with a notice to show cause to which he tersely responded expressing surprise that he was being accused of not meeting targets and as observed he omitted to furnish any evidence in his response to the show cause letter how he met the target. This in the court’s view was good enough and no further formal hearing was necessary. To this extent the respondent met the procedural fairness test hence the termination is deemed fair.
31. The claimant made several heads of claim such as salary for the month of February, salary in lieu of notice, severance pay, annual leave, underpayment and overtime. The termination letter dated 15th February, 2016 which was acknowledged and signed by the claimant showed he was paid salary for half of February, one month salary in lieu of notice, severance (sic) pay and salary for ten days leave not taken. The claimant did not receive this payment under any protest or disclaimer. He cannot therefore raise the same claims again.
32. On the issue of under payment the claimant did not attach even a single payslip to show how much the respondent was paying him and further he did not produce his credentials to show his qualifications to match with the gazetted wage guidelines in order for the court to see if there was indeed any underpayment.
33. On the issue of overtime, the claimant did not come out clear in which area and approximately when and at what intervals he worked overtime. It is indeed correct that it was the responsibility of the employer to keep records but where an employee alleges overtime, it is important that he or she lays background about the nature of work being performed that required working overtime and at what intervals and the period the overtime was worked. A mere assertion that an employee worked overtime is not enough to shift the burden on the employer to produce records. The records may not be there because there was no overtime worked.
34. In conclusion the court finds the claim without merit and is hereby dismissed with costs.
It is so ordered.
Dated, Signed and Delivered virtually at Nairobi on this ………day
of……………………….…2023
Abuodha J. N.
Judge
In the presence of:-
……………………………………….. for the Claimant
…………………………………………for the Respondent