Analysis and Determination
6.The facts of this case are not contested. The 1st Respondent is a society registered under the Societies Act. The 2nd Respondent is a school registered under the Education Act and the 3rd Respondent is the Administrative body that manages the 2nd Respondent.
7.The Claimant was employed by the 1st Respondent which operates the 2nd Respondent through the 3rd Respondent, as a secretary. She signed a staff service contract which states that her employment was a two-year renewable fixed contract with effect from 2nd January, 2008.
8.The contract provided for other terms of employment including salary, probation, leave (sick/annual/maternity) and termination notice among others.
9.It is common ground that on 31st March 2016 the Claimant filled a leave application form in which she indicated that she would be proceeding on maternity leave for 90 days with effect from 3rd May, 2016 to expire on 31st July, 2016. The Claimant indicated in the form that she would resume duty on 1st August, 2016.
10.The leave form has several parts. Part A is to be filled by the Applicant (Employee). Parte B is to be filled by the person maintaining the leave records. Part C is titled “Verified – Leave Subject To Availability Of Leave Days. It was to be signed by Finance Manager.
11.Part D is titled: Approval By The Human Resource And Administration Manager. Part E is for approval by Finance Sub-Committee. The form states that it was to be filled in 3 parts. Original was for staff personal file, second copy to be retained by Finance and Administration Manager and the 3rd Copy to be retained by the staff after approval.
12.The Claimant’s leave form is only filled in part A and B. Part A is signed by the Claimant on 31st March 2016, and Part B is signed on 4th April 2016. Part C, D and E are blank.
13.The Claimant’s letter of termination was issued by the 1st Respondent and is dated 4th April 2016. It is reproduced below:
14.As is evident from the Letter of termination, there is no mention of maternity leave or in the letter.
15.The Claimant filled a Clearance Form on 7th April, 2016 that was signed by several departments of the Respondents.
16.In the Statement of Claim, the Claimant avers that her employment was terminated without being accorded an opportunity to defend herself and without just cause. It is her position that the termination was wrongful and unfair.
17.RW1 testified that there were several disciplinary hearings that the Claimant was subjected to before her contract was terminated. Under cross examination RW1 stated that there were no minutes of any disciplinary hearing. She stated that the disciplinary process was progressive, which she explained to mean that there were some warning letters, sometimes suspension and sometimes withholding of salary.
18.The letter of termination does not make any reference to disciplinary hearing but refers to previous incidents of misconduct. The Respondent produced an attendance register as evidence of late reporting to work by the Claimant, a letter of 1st warning for late reporting for work dated 6th June, 2011, another warning dated 15th April, 2013, a warning letter dated 15th November, 2015 and another warning letter dated 16th November, 2015.
19.Obviously, these warning letters could not form the basis of termination of employment on 4th April, 2016.
20.For termination to be fair, there must be valid reason as provided in section 43 of the Employment Act and fair procedure as provided in section 41 of the Employment Act. If either or both are not proved by an employer, the termination is unfair as provided in section 45(2) of the Employment Act which provides-1.No employer shall terminate the employment of an employee unfairly.2.A termination of employment by an employer is unfair if the employer fails to prove—(a)that the reason for the termination is valid;(b)that the reason for the termination is a fair reason—(i)related to the employee’s conduct, capacity or compatibility; or(ii)based on the operational requirements of the employer; and(c)that the employment was terminated in accordance with fair procedure.
21.This position has been restarted in innumerable decisions of this court and the Court of Appeal which I need not rehash here.
22.From the evidence on record, the termination of the Claimant’s employment was without due process or valid reason.
23.Having been done just after the Claimant had applied for maternity leave, and noting the wording of the letter of termination, it would not be far-fetched to conclude that the real reason for termination was motivated by the Claimant’s application for maternity leave.
24.This would make it discriminatory and against the express provisions of Section 5(3) and 46 (a) and (b) of the Employment Act and Article 27 of the Constitution which provide for equality and freedoms from discrimination. The above sections are reproduced below for emphasis:i.Section 5 (3) of Employment Act3.No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee—a.on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status;b.in respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.ii.section 46 (a) and (b) of Employment Act
46.Reasons for termination or disciplineThe following do not constitute fair reasons for dismissal or for the imposition of a disciplinary penalty—a.a female employee’s pregnancy, or any reason connected with her pregnancy;b.the going on leave of an employee, or the proposal of an employee to take, any leave to which he was entitled under the law or a contract;
iii.Article 27 of the constitution
25.Had the Claimant prayed for damages for discrimination on grounds of pregnancy I would have awarded her the same. Since she did not I will award her maximum compensation at the rate of 12 months gross salary at Ksh 240,000 to incorporate the same.
26.The Claimant prayed for gratuity. The same has been offered in her letter of termination and was computed by the Respondent at Annexure “IMS5N” at Ksh. 79,968 net of PAYE and what the Respondent refers to as “Tax Balance to KRA” in the sum of Ksh.12,032. I award the Claimant the said sum of Ksh.79,968.
27.The Claimant also prayed for 1 month’s salary in lieu of notice. I award her the same at Ksh.20,000.
28.The Claimant’s prayer for transport allowance which she claimed to have been orally agreed upon was not proved. The same is declined.
29.In conclusion I award the Claimant the following against the Respondents jointly and severally:i.compensation Ksh.240,000.00ii.gratuity Ksh.79,968iii.pay in lieu of notice Ksh.20,000iv.the gratuity and notice payments shall attract interest at court rates from date of filing suit while the award on compensation will attract interest from date of judgment.v.The Respondents shall pay the Claimants costs of this suit.