Judge faults retail chain for firing ‘weak’ worker

The judge made the findings in an employment dispute pitting Cleanshelf Supermarkets Limited against one of its staff, Stephen Muraya Kamuri, who was the head of the bakery section.

Mr Kamuri sued after being sent on compulsory leave due to alleged unsatisfactory performance of his duties and was eventually terminated.

“The termination letter issued to the claimant makes reference to verbal warnings issued to him regarding his performance. There was, however, no evidence of any performance appraisal conducted or a performance improvement plan put in place as support to the claimant to improve,” said the judge.

The court found that the dismissal of Mr Kamuri, who had worked with the retailer from February 2011 to September 2015, was unfair and unlawful.

“The respondent’s (Cleanshelf Supermarkets) conduct in addressing the claimant’s performance issues was rather strange—instead of being supported to improve, the claimant was sent on a one-month compulsory leave, effective August 4, 2015, to September 1, 2015.

“The suspension letter, which was dated August 3, 2015, required the claimant to hand over all company assets entrusted to him,” Justice Ndolo.

According to the labour court, an employer alleging poor performance on the part of an employee must demonstrate the existence of an objective performance evaluation system as a benchmark for assessing performance and providing support for improvement.

"In my view, an employer who sends a poor performing employee on compulsory leave has no intention of supporting that employee to improve," she added. 

The court also held that an employee accused of underperformance needs to be allowed to improve over a reasonable length of time, like two or three months.

Mr Kamuri claimed that he was not issued a notice to show cause, and he was not allowed to be heard.

The supermarket denied the claims and stated that he was given several verbal warnings by the branch manager.

It defended the decision to terminate the employment, stating that several complaints had been raised by Mr Kamuri's colleagues and supervisors regarding the conduct of his duties.

The supermarket said that during his employment, the claimant was advanced a loan facility by the supermarket’s Sacco, which was guaranteed by the company.

It stated that at the time of termination, Mr Kamuri had an outstanding loan balance of Sh307,422, which was offset against his terminal dues amounting to Sh359,622, leaving a balance of Sh52,200.

However, Justice Ndolo ruled that in the absence of express authorisation by an employee, an employer cannot withhold the employee’s terminal dues under the guise of recovering an outstanding loan on behalf of a Sacco that is not a party to the proceedings.

"The Respondent (Cleanshelf Supermarkets) did not adduce any evidence to show concurrence by the claimant that his terminal dues be paid to the Sacco, nor was there proof that the said funds were actually moved from the Respondent to the Sacco. In the result, I find and hold that the Respondent’s action regarding application of the claimant’s terminal dues was unlawful," said Justice Ndolo.

The court awarded Mr Kamuri Sh554,000 as compensation for unfair termination.

The court considered the length of his service at the retailer, the employer's failure to undertake an appraisal of his performance prior to termination, and the apparent lack of support for improvement of his performance. 

It was also found that Mr Kamuri was not subjected to any disciplinary process before termination of his employment, as required by the Employment Act.

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