Introduction
In a recent employment dispute between Vincent Namai v National Bank of Kenya, the Employment and Labour Relations Court (the ELR Court) determined that employers must address issues or grievances raised by an employee before terminating their employment as a result of poor performance or failure to meet targets. The ELR Court similarly issued a declaration that Vincent Namai's (the Petitioner) employment was unfairly terminated and directed that National Bank of Kenya (the Respondent) pays the Petitioner compensation of Kenya Shillings five million (KES 5,000,000) for “actual violation of constitutional rights”.
Facts of the Case and Rationale for the Decision
The Respondent terminated the Petitioner's employment after a service period of 27 years. The termination followed a period of poor performance by the Petitioner, written warnings from the Respondent, the Petitioner being put in a performance improvement plan and the Respondent conducting a termination hearing. It appeared that the Respondent had followed the proper process for termination of the Petitioner’s employment.
However, the Petitioner’s case made it clear to the ELR Court that his poor performance was occasioned by a myriad of factors including abrupt transfers, lack of support and mentorship, the Covid-19 situation, lack of support staff et cetera.
The ELR Court noted that from the evidence on record, the Petitioner’s grievances were not taken into consideration. The ELR Court also noted that the Respondent was essentially raising well-grounded grievances or complaints and instead of the Respondent amicably addressing them, the scores of unsatisfactory performances were taken as if they existed in a vacuum.
The ELR Court further found, from the evidence submitted before it, that the Petitioner explained that his unsatisfactory performance was because the Respondent never addressed the grievances that he presented to them.
The ELR Court made the following findings:
“Upon looking at the case, while the respondent purported to comply with a notice and a hearing per section 41 of the Employment Act, 2007, in the full analysis of the petitioner’s lamentations, the respondent acted unreasonably by failing to take into account the petitioner’s valid grievances about his work environment at the Kitengela Branch that essentially explained the levelled unsatisfactory performance.”
“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.”
Implications of the Judgement
This is a progressive step by the ELR Court by going over and beyond the procedural requirements in employment matters. Previously, the jurisprudence emanating from the ELR Court was of the effect that if the employer could prove that procedural aspects with respect to termination were followed (e.g., warning letters, PIPs, performance reviews, termination hearings), the termination would be considered fair. However, with this judgment, it appears that the ELR Court has widened the scope to the effect that employment law is not only limited to procedure but goes into considers the nitty-gritties of the conduct of the employer and the employee during the life of employment.
In as much as the employees have expectations from their employers to achieve certain organisation goals, the employer is also under a similar obligation to ensure that there is adequate support afforded to the employee to meet the said expectations. Therefore, if an employee has valid grievances for his/her poor performance, the employer must consider the grievances and address (or attempt to address) the said grievances before terminating the employee’s employment.
As a result, employers cannot disregard the reasons for poor performance or failure to meet targets, especially if the employees have (i) highlighted the reasons for poor performance; and (ii) suggested areas for improvement that could help them meet their targets.
Ten years after the formation of the ELR Court, the ELR Court is steadily moving from determining the conventional issues of arbitrariness of employment disputes and moving to consideration of equity and fairness.
For further information, please contact Walid Khan, Obed Torotwa or your relationship partner at Africa Law Partners.
This alert is for general use only and should not be relied upon without seeking specific legal or employment advice on any matter.