The Employment and Labour Relations Court has ruled against Twiga Foods Limited for unlawfully terminating the contract of a sales employee over alleged poor performance, citing a lack of due process and failure to provide measurable performance benchmarks.
Justice Linnet Ndolo ordered the agribusiness firm to pay former sales representative Maxton Duke Kibira Sh1 million, comprising six months’ salary compensation and refund of unlawful salary deductions after finding the termination substantively and procedurally unfair.
Mr Kibira, a sales representative, was fired on December 13, 2018, via a letter citing "performance below set expectations," including unbanked revenue and low sales realisation rates.
However, the court noted that Twiga Foods violated labour laws by ignoring due process.
The court dismissed Twiga Foods’ claims that Mr Kibira consistently underperformed, noting the company failed to produce his job description or objective performance metrics to justify the December 2018 dismissal.
“The Respondent’s witness, Beatrice Maiyo, (legal manager), was unable to point out any proof of poor performance on the part of the Claimant. More significantly, the Claimant’s job description, which would have formed his performance benchmark, was not availed,” Justice Ndolo observed.
“The court was therefore at a loss as to how the verdict of poor performance was arrived at,” she stated.
The judgment emphasised that Kenyan labour law requires employers to give employees clear performance improvement plans over two to three months before termination. Twiga Foods only held one documented meeting with Kibira weeks before firing him.
The court also condemned Twiga Foods for deducting Sh426,000 from Mr Kibira’s salary over alleged unbanked revenues without evidence or his input. The court noted that some of the deductions went beyond half of the claimant’s salary.
“The decision to surcharge the claimant appears to have been unilateral. In fact, as confirmed by the Respondent’s witness, there was no document to show how the surcharge figures were arrived at,” said the judge.
Justice Ndolo ruled that such surcharges require a fair hearing under Section 41 of the Employment Act.
"By surcharging the Claimant and terminating him for the same issue, Twiga violated the rule against double jeopardy," the judge stated.
Mr Kibira had accused Twiga Foods of subjecting him to unrealistic sales targets, constant station transfers, unpaid overtime and a hostile work environment.
Twiga had denied wrongdoing, insisting deductions were on account of a bonus the claimant did not qualify for. It further denies that the claimant worked overtime.
The court dismissed these arguments, noting the company’s failure to reconcile the disputed deductions or justify overtime denials.
While the court declined to award overtime claims due to insufficient proof, it upheld his grievances on unlawful deductions and procedural flaws in his dismissal.
