Court ‘shields’ employers from sacking ‘poor performers’
3 min read
Employers risk court battles after a landmark ruling that 'shields' ‘poor performers’ from sacking for not reaching company targets
Employers risk court battles after a landmark ruling that ‘shields’ ‘poor performers’ from sacking for not reaching company targets.
A precedent-setting judgment from a court is expected to tip the scales in favor of employees who have been fired for subpar performance.
It was noted that, especially when the employee has indicated areas that, if left in employment, can assist them attain their goals, employers can no longer overlook the causes for below-average performance.
The Employment and Labour Court held that an employer would be being unreasonable if they failed to consider a worker’s complaints about the workplace, which could have contributed to their subpar 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.
His scores of subpar results were treated as if they didn’t exist, rather than the lender peacefully addressing the problems brought up by the former branch manager.
“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.
Mr. Namai was employed by the lender in 1995 as a clerical officer and progressed through the ranks to become a branch manager before being let go in January of last year, according to the evidence that was submitted to the court.
The court was informed that Mr. Namai served the country admirably for 27 years and received promotions on the basis of merit. He served as a branch manager for NBK for seven of those years.
Trouble began when he was reassigned to the Kitengela branch in 2020 for a second time, but the performance was subpar in contrast to his first tenure when his branch was one of the top five.
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Mr. Namai was placed under a performance enhancement programme, but his results were ultimately found to be unacceptable.
The former employee said that his inability to succeed was caused by internal promotions without sufficient mentorship support and abrupt transfers from one branch to another, both of which failed to take his fundamental competencies into account.
The court stated that the Covid-19 pandemic broke out shortly after Mr. Namai was transferred to Kitengela in March 2020, making it challenging for him to manage the firm in the unsettling 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.
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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