Francis Madegwa Shitemi v Corporate Security Services Limited [2021] KEELRC 2393 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing an employee for poor performance without a proper hearing is unfair, even if performance problems are real.
What this practically means
#Executive summary
#Key legal issues
#Fairness of termination for poor performance
Termination was unfair because the respondent issued the termination notice while the claimant was on leave without following due process under section 41
Section 41 requires an employer to explain reasons to the employee and hear representations before terminating for poor performance. The respondent issued the notice while the claimant was on annual leave, without a hearing or show-cause process, and merely cited unsatisfactory service. Following Jane Samba Mukala, the employer bore a high level of proof and had to show performance-evaluation measures. Failure to do so rendered the termination unfair under section 45.
Quantum of compensation for unfair termination
Two months' salary (Ksh.30,000) awarded under section 49, considering the claimant's two years of service and last wage of Ksh.15,000
Under section 49 of the Employment Act, compensation considers length of service and last earnings. The claimant served two years at Ksh.15,000 per month, so two months' compensation was found reasonable and appropriate.
Claims for leave, overtime, public holidays and off days
All these heads of claim were rejected as the claimant had exceeded his leave entitlement, enjoyed weekly rest days, and did not particularise the public holidays claimed
The claimant earned 42 leave days over two years but took 52 days. He testified he enjoyed an off day each week on Saturday or Sunday and took his annual leave, making a daily overtime multiplier dishonest. Public holiday claims were not particularised, and off days were enjoyed. The claims failed on the evidence.
Legal principles established
#- Termination on grounds of poor performance requires the employer to comply with section 41 of the Employment Act, including notice, reasons, and a hearing before termination
- It is not sufficient for an employer to merely cite poor performance; the employer must demonstrate performance measurement policies and efforts to address poor performance before termination
Court orders
#- 1.Judgment entered for the claimant against the respondent for payment of compensation of Ksh.30,000
- 2.Claimant awarded 50% of his costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007 and ELRC establishment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Madegwa Shitemi v Corporate Security Services Limited [2021] KEELRC 2393 (KLR)", Case Analysis (2021). Cause No. 1214 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2393/eng@2021-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.