The employment contract between Sameer Agriculture and Livestock Limited (Kenya) and Enos Ambogo begun on April 5, 2018 and would continue until January 24, 2019.
As per the contract, Ambogo was hired as a Sales Manager on a three-year tenure with initial six months on probation.
Two months after his employment on June 11, he was deployed to serve in the position of Business Development Manager, with a salary of Sh300,000.
On December 18, Ambogo was issued with a performance improvement plan.
According to him, this was notwithstanding that his performance was good.
On January 23, 2019, Ambogo reported to work only for his employer to implore him to resign, which he said was without a valid reason.
He declined to resign and went back to his work but the following day, he was issued with a termination letter.
According to the letter, the reason for termination of contract was that he had failed to meet the company's performance expectations.
Ambogo disputed this and moved to the Employment and Labour Relations Court.
In his case, he stated that he met all the performance targets that had been set for him.
Appearing before Judge Bernard Manani, Ambogo said the only element that remained unfulfilled in the performance targets related to non-performing debts.
He said regarding this, there was little that he would have done, adding that these non-performing debts had been assigned to the company's debt recovery unit.
He told the court that he was not subjected to the disciplinary process that is prescribed in law before he was relieved of his duties.
"All that the Respondent (Sameer) did was to issue him with the letter of termination on January 24, 2019," the court documents read.
On the part of the company, it argues that Ambogo's contract was lawfully terminated, saying he did not meet its performance expectations.
The company said it held several performance review meetings with Ambogo during which he was assisted on how to improve his performance but this did not help matters.
The company further said Ambogo lacked enthusiasm for his work and said his contract was taken during the probation period.
As such, issuance of the requisite notice before termination was sufficient to end the employment relation.
After hearing the case, Judge Manani said the suggestion by the company that Ambogo was not entitled to a hearing before his contract was terminated was flawed.
He added that it was doubtful that at the time of terminating his contract of service, Ambogo was still serving on probationary terms.
The judge further noted that the letter of appointment in April said the probation would last for six months.
The letter issued after re-assignment also stated that apart from the change of roles, the terms and conditions of the contract remained as set out in the letter of appointment.
"In effect, the commencement date and duration of the claimant’s probation was unaffected," the judge ruled.
Judge Manani concluded that by January 24, 2019, the six months probationary period in the contract had lapsed.
The judge also noted that the company failed to uphold requirements of law under the misguided belief that the fact that Ambogo was allegedly on probation relieved it of this obligation.
These requirements included a hearing for the aforementioned poor performance.
"Consequently, I arrive at the conclusion that the Respondent’s decision to terminate the Claimant’s contract on account of poor performance was procedurally flawed," the judge said.
In light of the findings, the court awarded Ambogo compensation equivalent to his gross monthly salary for a period of four months.
This worked out to Sh300,000x 4 = Sh1.2 million.
Further, Ambogo had prayed for Sh24,000 being the amount that the company had deducted from him to cover loss arising from some alleged fraud.
There was, however, no evidence linking the ex-employee to the alleged loss to enable the company effect the impugned deduction.
The absence of such evidence, Judge Manani said, meant that it was wrongful for the company to have deducted the money.
He ordered it to reimburse the amount to Ambogo.
"I award the Claimant interest on the sum awarded at court rates from the date of this decision," he said in a September 29, judgment.
