Termination for poor performance under Kenyan employment law

Poor performance stands out as the most common reason for employment termination. While it might seem straightforward, the authority employers wield over performance is not absolute when it comes to dismissal.

Let’s delve deeper into this aspect of employment rights.

‘The subject of poor performance of an employee is a serious matter. Such requires thorough investigations before an employer can use such a reason as the basis for termination. The rationale is that an employee is hired for being competent for the job and upon confirmation, such an employee has been put to the test and passed’ – Justice Monica Mbaru in Christopher Onyango & 24 others versus Heritage Insurance Co. Ltd

In the case of National Bank of Kenya vs. Samuel Nguru Mutonya, the Bank had sacked an employee due to alleged dismal performance. When sued, it argued that the decision to terminate the employee was taken in the exercise of its managerial supervision over his performance; therefore the Court should not interfere.  

The Court while rejecting that argument said that: ‘We do not agree with the Bank’s submission that such exercise of managerial supervisory power over the respondent in the discharge of his duties as an employee of the Bank was not amenable to scrutiny and interference by the trial court. Such a position in our view, would render nonsense the existence of the procedures provided for in (the Employment Act).

Unfair termination of employment in Kenya

Under Kenya’s Employment laws, the employer bears the burden of proving the fairness of employment termination.  Failure to do that results in a finding that the termination was unfair.

What, then, must the employer prove to justify terminating an employee’s employment for poor performance?

Cases of unfair termination of employment in Kenya

In the case of Isdor Rachuonyo vs. Brava Food Industries Limited, Isdor, an area Sales Manager, was in 2016 handed a letter terminating his employment for poor performance. The letter specified that he had ‘given an impression that he had given up on his job’ and accused him of ‘generally not meeting the core requirements of the job.’

Isdor deemed these allegations to be too vague, and sued Brava Food Industries Limited for unfair termination of employment.  In their defence, the employer alleged that Isdor’s performance was at 17 %, but could not explain how the percentage was arrived at, or what the target entailed.

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 Justice Ochako Kebira observed that while the employer suggested that it had an elaborate performance evaluation scheme, they had not provided any evidence to that effect. The judge stated:

‘One would expect [Brava Industries Limited] to demonstrate to court that; there were specific agreed annual targets between the Claimant and his line manager; the Claimant’s performance was measured periodically against the agreed targets; where a deficiency in his performance was noted, the same was brought to his attention… these were absent in the material that the employer placed before this court.’

In the end, Isdor’s termination having been found to be unfair, he was awarded Ksh 420,000 as compensation. 

Timothy Nchoe Sironka vs. Judicial Service Commission [2020] 

The Claimant was employed by the Judicial Service Commission (JSC) as a Magistrate. He worked at the Milimani Commercial Law Courts- the busiest station in the country-from 2012 until 2015 when he was transferred to Makueni. By this time, he had pending cases at Milimani which he continued working on at his new station. 

Shortly after, he was interdicted on accusations of not finalizing the Milimani cases in time, and was later dismissed. Aggrieved, he sued the JSC for unfair termination of employment. 

It emerged that there were no mutually agreed targets between the Magistrate and the JSC. Further, Timothy had never been subjected to a Performance Management Appraisal system. This led Justice Hellen Wasilwa to find that, despite the case backlog, ‘There is no indication that [Timothy] failed to deliver as expected.’ 

Timothy won his case and was awarded Ksh 5 million as compensation, in addition to his salary withheld during the interdiction period. 

Jane Samba Mukala vs. Ol Tukai Lodge Limited [2013] 

Jane, a restaurant manager, was in March 2010 given a Notice of Termination. In it, her employer,Ol Tukai Lodge Limited, accused her of poor performance. 

At trial, upon evaluating the evidence, the judge found that ‘No appraisal system was demonstrated to exist’, and that the employer did not have a criteria to use on any employee to assess their performance.

 ‘Where poor performance is shown to be a reasons for termination, the judge stated, ‘the employer is placed at a high level of proof …to show that in arriving at this 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.’ 

She added that:  ‘It will not suffice to just say that one has been terminated for poor performance. The effort leading to this decision must be demonstrated. Otherwise, it would be an easy option for abuse.’

In sum, on this basis, Justice Monica Mbaru ruled that Jane’s termination was ‘procedurally irregular’ and awarded her Ksh 508,337.70 as compensation. 

An opportunity to improve

Eddah Anyango Akumu vs. AAR Insurance Kenya Limited [2018]

Eddah was employed as a procurement officer in 2008 by AAR Kenya. At the beginning of 2014, the employer set performance targets. When Eddah later failed to perform as expected, she was put on a performance improvement plan in March. That same month, she received her first warning letter and a second one 2 months later. She was sacked in June.

Justice Helen Wasilwa ruled that Eddah was not given sufficient time to improve her performance, and ruled that her termination was therefore unfair. She was awarded Ksh 1.8 million in damages.  

The Employment Court has even suggested that that the employer has an obligation to support a struggling employee to improve their performance. 

In the case of  Liberata Njau Njioka vs. Magadi Soda Company Limited, for example, the Court said that:  ‘If the employee is unable to attain the required standards after a fair evaluation and despite receiving instruction, training, guidance or counseling, alternative employment ought to be offered where possible.’

Employee’s fault

Yet another requirement articulated in the recent case of Namai vs. National Bank of Kenya Limited is that, the poor performance should be directly attributable to the employee.

In that case, the Claimant was employed as clerk in 1995 and had risen to the position of branch manager. He was in 2014 transferred to the Bank’s Kitengela branch. By all accounts his performance there was stellar, and he left it as one of the top 5 branches countrywide when he moved to the Rongai Branch. 

Namai returned to his old Kitengela station in March 2020. This was during the COVID 19 pandemic, and the situation meant that the branch he had left as one of the best was now doing poorly.  Customers were leaving due to a struggling economy, and it became difficult for Namai to meet targets. By 2021, his performance had not improved, which resulted in the Bank issuing him 2 warning letters. Nothing changed, and he was called to a meeting to explain his inability to improve. 

Namai blamed his unsatisfactory performance on lack of business due to the covid situation, lack of revenue and lack of support. But his lamentations fell on deaf ears, as he was sacked in January 2022.  

Justice Byram Ongaya found that Namai’s termination was unfair, holding that: 

‘Yes, the (performance) score was returned as unsatisfactory against the petitioner. However, in view of his unresolved valid grievances which the Court finds to have existed in absence of contrary evidence or rebuttal by the respondent, it cannot be found that the poor performance was attributable to the petitioner’s capacity, compatibility, contact or the respondent’s operational requirements. The evidence instead was that the poor performance was attributable to the respondent’s defective operational requirements and cannot be visited upon the petitioner with adverse consequences.’

Namai was awarded Ksh 5 million as compensation. 

Conclusion 

In instances of employment termination for poor performance, our Courts continue to develop safeguards aimed at protecting the employee as the weaker party in the employment relationship. This is in line with the Constitutional right of every person to fair labour practices.  

— By Newton Arori, Advocate of the High Court of Kenya