The former Chief Commercial Officer at Consolidated Bank, Mr Tom Ochieng Ndalo, was reportedly dismissed from his role just eight months after his appointment, with performance issues cited as the reason for the termination of his contract. According to the records available, Ndalo was employed from 1st August 2023 until 5th April 2024, when his contract was terminated due to alleged poor performance by the bank.
Investigations reveal that Ndalo’s contract contained a probationary term of six months running from 1st August 2023 to 1st February 2024; however, the bank terminated the contract in April 2024, approximately two months after the probationary period had lapsed. Ndalo asserts that the bank lacked a legitimate justification for terminating his services, contending that the bank’s claim regarding his failure to meet the required performance standards is inaccurate, citing his score of 52.95% during the evaluation of his performance, which was above the bank’s threshold of 50%. As such, his contract ought to have been sustained, he argued.
On the other hand, the bank contends that Ndalo did not meet its performance threshold to enable it to confirm its contract. As such, his services were lawfully terminated. The bank claimed that Ndalo’s performance assessment for 2023 covered a period of four and a half (4.5) months; according to the bank, Nalo scored 42.9% during this period. Ndalo, feeling wronged by the termination of his contract, initiated legal proceedings against the bank at the Employment and Labour Relations Court located in Nairobi.
The court observed that the bank operates as a state corporation, significantly owned by the national government, which possesses over 85% of its shares through the National Treasury. The judge noted that in an employment relationship, the employer must communicate to the employee his performance targets and the tools and methodology for measuring whether or not they have been met in a manner that is clear and incapable of varied interpretations.
In the instant case, the parties appear to agree that Ndalo was to score at least 50% during the evaluation of his performance to meet the threshold for confirmation of his contract as set by the bank. However, they cannot agree on the methodology to determine the threshold.
As a result, the claimant believes that he met the threshold by attaining 52.95% of the expected results. On the other hand, the bank believes that the claimant’s performance fell below the set threshold after he attained 47.9% of the expected outcome. The parties have applied different methods to arrive at their respective conclusions.
A ruling dated September 19, 2024, by Judge B.O.M. Manani reads, “Nevertheless, a conservatory order is hereby issued restraining the respondent, either by itself or through its agents, from advertising, accepting applications, or filling the position of Chief Commercial Officer within its rank and file on a substantive basis until this dispute is resolved through trial.”.
