Simiyu v Boc Kenya Plc (Cause E057 of 2021) [2024] KEELRC 2185 (KLR)
The bottom line
#A Kenyan court upheld dismissal for poor performance because the employer gave proper notice, a hearing, an appeal, and had documented repeated performance improvement plans.
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's termination of employment was unfair and unlawful
- 2.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the termination was procedurally fair
The Court found the respondent accorded the claimant procedural fairness; he was invited to an inquiry, responded, was heard and appealed
The Court noted the claimant received a letter dated 26 February 2020 inviting him to an incapacity inquiry on 3 March 2020, responded on 2 March 2020, attended the hearing where the issues in the letter were discussed, and appealed. The respondent's Disciplinary Code contained elaborate procedures which the court found were followed. The Court held that the requirement is notice, hearing and reasons issued before the termination decision, and was satisfied these were met.
Whether poor performance was a valid and fair reason for termination
Yes - the claimant's repeated placements on PIP (2014, 2015/2016 and 2019) established a poor performance track record justifying termination
The claimant conceded he underwent four PIPs and that his performance did not improve. Sections 41, 44 and 45 of the Employment Act entitle an employer to discipline employees for poor performance since capability is an essential requirement of the employment contract. The Court found the history of PIPs was not a good performance record and the termination on account of poor performance was justified.
Whether the claimant was discriminated against
No - the claimant merely alleged discrimination without facts to support it, so the burden did not shift to the respondent
While section 5 of the Employment Act shifts the burden to the employer once an employee presents prima facie evidence of discrimination, the employee must first present sufficient facts. The claimant only argued that the sales manager was retrenched while he was terminated, without demonstrating comparable circumstances such as whether the sales manager had also been on PIP. The allegation was therefore bare and failed.
Legal principles established
#- Termination for poor performance is a valid and fair reason for termination where the employer follows due process
- Before termination on grounds of poor performance, the employer must give notice, a hearing and reasons, and the notice must issue before the decision to terminate
- An employee alleging discrimination must present sufficient supporting facts; a bare allegation does not shift the burden of proof to the employer
Court orders
#- 1.The claim in its entirety is dismissed with costs
- 2.The respondent will issue the claimant with a certificate of service
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (sections 41, 43, 44 and 45 of the Employment Act; Articles 27, 41 and 47 of the Constitution invoked by the parties)
Relief refused
#Review of the decision to dismiss the Claimant; declarations of breach, unfair and constructive dismissal; damages including 12 months' compensation, salary arrears, STIP bonus, pension, retirement benefits, NSSF/NHIF contributions and loan insurance waivers
The Court found procedural fairness was accorded and that the Claimant had a history of poor performance; the claim in its entirety was found without merit
Damages for discriminatory treatment
The Claimant did not sufficiently demonstrate discrimination to shift the burden of proof to the Respondent
Costs
Claim dismissed with costs to the Respondent
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.
In conclusion the Court finds the claim in its entirety without merit and the same is hereby dismissed with costs.
The respondent will however issue the claimant with a certificate of service.
It is so ordered.
From the foregoing, the Court is reasonably satisfied that the respondent accorded the claimant procedural fairness while considering the termination of his employment.
Termination of employment due to poor performance is therefore a valid and fair reasons for termination.
Issues in the judgment
#Corrupted/garbled text in the heading of paragraph 59 introducing the first issue
Typographical errors in the judgment text (e.g. 'ofiered', 'suficiently', 'difiulties', and incomplete sentence shifting the burden)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simiyu v Boc Kenya Plc (Cause E057 of 2021) [2024] KEELRC 2185 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2185/eng@2024-09-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.