When Zippy Gacheri Nyaga walked into work as the Human Resource Officer at Bomi Engineering and Construction in August 2023, she was expected to keep order in the workplace, manage staff issues and ensure smooth labour relations.

Barely eight months later, she was shown the door.

The company told her she had performed poorly and that her employment had been terminated with immediate effect. But in a judgment that reinforces the rights of employees facing dismissal, the Employment and Labour Relations Court in Machakos has ruled that an employer must do far more than simply label an employee a poor performer.

The judge found that Bomi Engineering and Construction failed to prove the allegations it levelled against Ms Nyaga and did not follow the legal procedure required before terminating her employment.

Milimani Law Courts in Nairobi.

Photo credit: File | Nation Media Group

The ruling highlights an issue that has become increasingly common in Kenyan workplaces: employers citing poor performance without documenting it or giving workers a fair chance to defend themselves.

Ms Nyaga had joined the company on August 28, 2023, on a one-year contract earning a gross monthly salary of Sh82,000. She claimed that on April 25, 2024, she was abruptly dismissed after being accused of poor performance without warning letters, performance appraisals, disciplinary proceedings or an opportunity to respond to the allegations.

She argued that throughout her employment she had never been engaged on concerns about her work, either verbally or in writing, nor was she given any performance checklist or improvement plan before losing her job.

The employer painted a different picture.

According to Bomi Engineering, Ms Nyaga had failed to tackle workers’ absenteeism and had been unable to resolve shop-floor disputes, resulting in frequent industrial unrest. The company maintained that it invited her to a performance review meeting on March 5, 2024, granted her one month to improve and only dismissed her after little progress was made.

It also argued that the termination complied with both her employment contract and the Employment Act, insisting that procedural fairness had been observed.

However, when the dispute reached court, the judge noted that the employer’s assertions remained just mere assertions.

Although the company claimed there had been a performance review meeting and an opportunity to improve, it failed to produce minutes of the meeting, performance evaluations, appraisal reports or any documentary evidence showing that Ms Nyaga had indeed fallen below expected standards.

Allege and prove

The judge observed that the only document placed before the court was the termination letter, which simply stated that her employment had ended because of “poor performance as per company standards” without demonstrating how that conclusion had been reached.

The court emphasised that poor performance cannot be established through allegations alone.

Employers, the judge said, must have clear systems for evaluating staff performance and must be able to show the standards against which employees are measured. If shortcomings arise, the employee must be informed of the concerns, given an opportunity to improve and later allowed to defend themselves before any decision to dismiss is made.

The judge relied on earlier judicial precedents that have consistently held employers to a high standard whenever poor performance is cited as grounds for dismissal.

In Ms Nyaga’s case, none of those safeguards had been demonstrated.

The court found no evidence that she had been subjected to a proper performance management process or accorded the hearing required under Section 41 of the Employment Act.

The dismissal was therefore declared both substantively and procedurally unfair.

While Ms Nyaga had sought compensation equivalent to 12 months’ salary together with notice pay and leave dues, the court considered several factors in determining the appropriate remedy.

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The judge noted that she had served for only about nine months and was still relatively young, meaning she had reasonable prospects of securing alternative employment.

For that reason, the court awarded compensation equivalent to two months’ salary amounting to Sh164,000 instead of the maximum permissible award.

The judge also granted one month’s salary in lieu of notice amounting to Sh82,000, awarded Sh14,000 for prorated leave and ordered the company to issue a certificate of service within 21 days.

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