FRANCIS GYIDEYI V KENYA COMMERCIAL BANK LIMITED [2012] KEELRC 92 (KLR)
The bottom line
#A Kenyan court found a clerk's dismissal unfair because the employer never gave him the hearing required by law, and awarded him over Kshs 1.8 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was employed by the respondent as a Clerk
- 2.Whether the reasons adduced by the respondent (poor performance) could warrant the dismissal of the claimant
- 3.Whether the termination was conducted in accordance with fair procedure under section 41 of the Employment Act
- 4.What remedies the claimant is entitled to upon a finding of unfair termination
Key legal issues
#Whether the termination for poor performance was procedurally fair
The dismissal was unfair because the hearing envisaged by section 41 of the Employment Act was not granted to the claimant, even if poor performance issues had been brought to his attention
The court found the claimant was employed as a Clerk and that the respondent's poor-performance allegations stretched back to 2005 and 2006, matters the claimant had responded to through his union and which were laid to rest, yet he was allowed to work until 2010. Although the respondent claimed a hearing was given, the structured hearing contemplated by section 41 of the Employment Act - explanation of reasons in a language the employee understands and an opportunity to have a fellow employee or union representative present and make representations - was never accorded. Absent that hearing, the dismissal could not stand under sections 41 and 45.
Whether the reason for termination was valid and fair
Given the failure of fair procedure, the court found the dismissal unfair and awarded remedies under section 45 read with section 49 of the Employment Act
Under section 45(2), the employer bears the burden of proving a valid reason, a fair reason related to conduct, capacity or compatibility or operational requirements, and procedural fairness. The respondent relied on performance appraisals showing a score of 2.65, which the claimant disputed, asserting he had signed under coercion for a score of 3. The stale complaints of 2005/2006 could not justify a 2010 termination. The court found the employer did not act in accordance with justice and equity and converted the termination into a normal termination, entitling the claimant to compensation and notice pay.
Legal principles established
#- Before terminating an employee on grounds of misconduct, poor performance or physical incapacity, an employer must explain the reasons to the employee in a language the employee understands and hear and consider any representations made by the employee or a chosen representative
- A termination of employment is unfair where the employer fails to prove a valid and fair reason and that the termination was in accordance with fair procedure
Court orders
#- 1.The claimant's termination is converted into a normal termination
- 2.Respondent to pay 12 months' compensation for unfair and wrongful termination being 142,919.25 x 12 = Kshs. 1,715,028
- 3.Respondent to pay one month salary in lieu of notice of Kshs. 142,919.25
- 4.Total award of Kshs. 1,857,947
- 5.Claimant to be issued with a Certificate of Service
- 6.Respondent to pay costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court over employment and labour relations disputes (claim for unfair termination filed as a statement of claim)
Relief refused
#Reinstatement to his previous position
The claimant had sought reinstatement by letter dated 28th May 2010, but the court instead converted the termination into a normal termination and awarded compensation; no express reinstatement order was made
Costs
Respondent will also pay costs of this suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Though issues of poor performance could have been brought to claimant’s attention, the hearing as envisaged by law was not granted to him.
Given this, I find the dismissal was unfair as fair procedure were not followed. I convert the claimant’s termination into a normal one.
12 months compensation for unfair and wrongful termination = 142,919.25 x 12 - 1 month salary in lieu of notice - Ksh.1,715,028/= Ksh.142,919.25/= TOTAL - 3. Claimant be issued with Certificate of service. 4. Respondent will also pay costs of this suit. Ksh.1,857,947/=
Issues in the judgment
#The name and case number of the suit are not stated in the judgment; the claimant's name appears but the respondent is referred to only as 'the Respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FRANCIS GYIDEYI V KENYA COMMERCIAL BANK LIMITED [2012] KEELRC 92 (KLR)", Case Analysis (2012). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/92/eng@2012-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.