Automated Summary
Key Facts
David Masha Maitha, employed as a Welder by ARM Cement (formerly Athi River Mining Ltd) from September 2010, alleged unfair termination in June 2015. The respondent claimed termination occurred in June 2016 due to poor performance. The court found the termination procedurally unfair as the claimant was not given an opportunity to improve. Key compensation awarded includes 8 months' salary (Kshs. 114,400), 1 month's notice (Kshs. 14,300), and 56 months of leave pay (Kshs. 30,800), totaling Kshs. 159,500 with interest and costs to the claimant.
Issues
- Whether the Claimant is entitled to the remedies sought
- Whether the termination of the Claimant's employment was lawful and fair
Holdings
- The Claimant's request for public holiday pay was dismissed as it was not proved.
- The court determined that the Claimant's termination was substantively and procedurally unfair because he was not provided with particulars of poor performance or an opportunity to improve, as required by Section 41 of the Employment Act, 2007.
- The Claimant was awarded 8 months' salary in compensation (Kshs. 114,400) and 1 month's salary in lieu of notice (Kshs. 14,300), totaling Kshs. 128,700. Additionally, 56 months' leave pay (Kshs. 30,800) was awarded as the Respondent failed to prove payment was made.
Remedies
- The Claimant received 1 month's salary (Kshs. 14,300) in lieu of notice as per the court's judgment.
- Leave pay of Kshs. 30,800 was awarded for 56 months, as admitted by the Respondent's witness but unverified by actual payment evidence.
- The Claimant was awarded 8 months' salary in compensation (Kshs. 114,400) for his substantively and procedurally unfair termination. This amount accounts for the length of service and the Respondent's conduct in the termination.
Monetary Damages
159500.00
Legal Principles
The court applied the principle of procedural fairness under Natural Justice, emphasizing that termination for poor performance must include providing an employee with specific particulars of the shortcomings and a reasonable opportunity to improve (2-3 months). The failure to follow this procedure rendered the termination substantively and procedurally unfair.
Precedent Name
Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) v Stanley Kinyanjui and Magnate Ventures
Cited Statute
Employment Act, 2007
Judge Name
Linnet Ndolo
Passage Text
- it is evident that the Claimant was not provided with any particulars of poor performance nor was he afforded any opportunity to improve. The result is that the termination of the Claimant's employment was substantively and procedurally unfair and he is entitled to compensation.
- I award the Claimant eight (8) months' salary in compensation. In making this award, I have taken into account the Claimant's length of service and the Respondent's conduct in the termination transaction. The Claimant is also entitled to one (1) month's salary in lieu of notice.
- the Respondent's witness, Nelly Nzingo Mulewa states that the Claimant was paid leave pay for 56 months. She was however unable to prove any payment to the Claimant, who himself denied receiving any money from the Respondent. Consequently, I award the Claimant leave pay for 56 months as admitted by the Respondent.