Risks for employers sacking ‘poor performers’

Court rules employer would be acting unreasonably by failing to consider a worker’s grievances on performance. FILE PHOTO | SHUTTERSTOCK

A court has made a precedent-setting decision that promises to tilt the scale in favour of employees fired for poor performance.

It observed that employers can no longer ignore the reasons for below-average performance, especially when the worker has suggested areas that will help them reach their targets if left in employment.

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The Employment and Labour Court ruled that an employer would be acting unreasonably by failing to take into account a worker’s grievances on the work environment, explaining one’s unsatisfactory performance.

Justice Byram Ongaya noted that Vincent Namai was unfairly terminated by National Bank (NBK) even after raising well-grounded grievances or complaints as required by the Employment Act.

Instead of the lender amicably addressing the issues raised by the former branch manager, his scores of unsatisfactory performances were taken as if they existed in a vacuum.

“On the whole, the Court returns that the petition was well grounded upon the material before the court and it has been established accordingly,” the judge said as he ordered the lender to compensate him Sh5 million for the termination.

Evidence presented to the court was that Mr Namai was employed by the lender in 1995 as a clerical officer and rose through the ranks to become a branch manager until his sacking in January last year.

The court was informed that Mr Namai had exemplary service for 27 years and got meritorious promotions. Seven of the years he worked at NBK as a branch manager.

Trouble started when he was posted to the Kitengela branch in 2020 for the second time but the performance was not satisfactory unlike his first term, when his branch was ranked among the best five.

Mr Namai was put under a performance improvement project but his scores were still determined as unsatisfactory and was eventually terminated.

The former employee had complained that he could not perform because of abrupt transfers from one branch to another and internal promotions without proper support mechanism of mentorship and equally without consideration of his core competencies.

The court noted that when Mr Namai was transferred to Kitengela in March 2020, the Covid-19 pandemic struck and it became difficult for him to handle the business with the uncertain new environment.

The branch he had left in the top five was now performing poorly upon his redeployment and the customers he had brought in had left.

The judge said Mr Namai raised the issues during the hearings but the employer was fixated on the unsatisfactory performance.

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Justice Ongaya said the evidence of the poor performance was attributable to the bank’s defective operations that cannot be visited upon the employee.

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