Highlight on poor performance

By: Lennox Angungu

The only sure thing in life is death and taxes. An employer can wake up any day and  end your job ( while following procedure and on reasonable grounds ) . Termination under the black law dictionary is defined as the last step of employment where a worker is let go.

Termination of employment is regulated by the Employment Act.According to the Employment Act sections 45(2) and 46. An employer has to prove for termination of employment in Kenya. Otherwise, it is termed as illegal. An employer can let go of an employee due to:

- Poor performance

- Gross Misconduct

- Physical Incapacity( payment of wages     up to an including end of his contract) 

- Breach of fundamental terms of an         employment contract .

Poor performance as a ground for termination

Poor performance or underperformance can be defined as: Failure to do the duties of the role or meet the standard required or reasonable performance expectations (other than any such failure resulting from incapacity due to physical or mental illness); Poor performance would usually be considered a conduct or capability issue, depending on the nature of the poor performance. 

Poor performance is a valid ground for termination according to the Employment Act in Kenya .This ground however , places a higher level of proof on the employer to prove their termination. The Court of Appeal in Jane Samba Mukala v Ol Tukai Lodge Limited Industrial Cause No. 823 of 2010(2010)LLR 255 (ICK) observed as follows:=

“…….The employer must show that in arriving at the decision of noting the poor performance of an employee, they had put in place an employment policy or practice on how to measure good performance as against poor performance…It will not suffice to say that one has been terminated for poor performance as the effort leading to this decision must be established.”

 In the case of British Leyland UK Ltd v Swift (1981) I.R.L.R 91 Lord Denning described the test of reasonableness in the following words: -

“The correct test is; was it reasonable for the employers to dismiss him" If no reasonable employer would have dismissed him, the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him, the dismissal was fair. It must be remembered in all these cases that there is a band of reasonableness, within which an employer might reasonably take one view; another quite reasonably takes a different view. One would quite reasonably dismiss the man. The other quite reasonably keeps him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair even though some other employers may not have dismissed him.”

In Jane Wairimu Machira v Mugo Waweru & Associates (2012) eKLR, the court opined:

“The proper procedure once poor performance of an employee is noted is to point out the shortcomings to the employee and give the employee an opportunity to improve over a reasonable length of time. In our view 2-3 months would be reasonable.”

Similarly in Jane Samba Mukala Vs. Oltukai Lodge Limited [2010] KLR 225 the Court observed that–

 “Where poor performance is shown to be reason for termination, the employer is placed at a high level of proof as outlined in section 8 of the Employment Act, 2007. The employer must show that in arriving at the decision of noting the poor performance of an employee, they had put in place an employment policy or practice on how to measure good performance as against poor performance.”

In Conclusion 

The employer should determine the reason for the poor performance before taking further action against an employee. This might be accomplished by a review, followed by a  continued performance management, and a warning that failure to improve is likely to end in dismissal. For termination of employment for non-performance or poor performance of work, an aspect that calls for crucial importance is the record of assessment of an employee's work performance over a reasonable period of time , which can necessitate an employer place an employee on  a performance improvement plan. an employer has a role to play in improving performance by making decisions that assist the employee in the process and not ignoring their concerns.