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|Case Number:||Cause No. 1161 Of 2010|
|Parties:||V M K v Catholic University Of Eastern Africa|
|Date Delivered:||08 Nov 2013|
|Court:||Employment and Labour Relations Court at Nairobi|
|Judge(s):||Mathews Nderi Nduma|
|Citation:||V M K v C U E A  eKLR|
|Advocates:||Julius Juma for Claimant. James Okeo for Respondent|
|Court Division:||Industrial Court|
|Advocates:||Julius Juma for Claimant. James Okeo for Respondent|
Scope of medical fitness screening in the context of employment relationships
V M K v C U E A
Cause No. 1161 of 2010
Industrial Court of Kenya at Nairobi
M N Nduma, J
November 8, 2013
Reported by Teddy Musiga
The claimant alleged discrimination against the respondent, particulars being; keeping her on casual employment selectively; paying her an inordinately low salary for equal work compared to her counterparts; refusing her recruitment on permanent basis and continuing to employ her on casual basis with very low pay compared to her colleagues in the same position for long period; testing her for HIV status without her consent; disclosing her HIV status to her superiors and colleagues and thereby violating her right to privacy; keeping her on short and progressively shorter contracts, with unequal terms due to her HIV status; refusing her paid maternity leave followed by an immediate termination of employment upon return from unpaid maternity leave.
Employment Law – employer & employee relationship – termination of employment – termination on grounds of HIV status and pregnancy - whether the termination of employment based on HIV status and pregnancy is lawful – Employment Act, section 29
Employment Law – Fair labour practices - fair remuneration – equal work for equal pay – reasonable working conditions – Employment Act, Section 5, Constitution of Kenya, 2010 article 41
Employment Law – employer & employee relationship – medical fitness scrutiny of employees – considerations/ tests for medical fitness scrutiny - Whether HIV screening in the workplace for purposes of recruiting, retaining or promotion of employees is legal - Whether employers are entitled to scrutinise the medical fitness of employees to be absorbed in their permanent services
Article 27 of the Constitution of Kenya, 2010 provided that;
“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”
Article 28 of the Constitution of Kenya, 2010 provided that;
“Every person has the inherent dignity and right to have that dignity respected and protected.”
Article 41(2) of the Constitution of Kenya, 2010 provided that;
“Every person has the right to fair labour practices which includes the right to fair remuneration and reasonable working conditions.”
Section 5 of the Employment Act provided that;
“(2) An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.
(3) No employer shall discriminate directly or indirectly against an employee or prospective employee or harass an employee or prospective employee on the grounds of race, color, sex, language, religion, political or other opinion, nationality, ethic or social origin, disability, pregnancy, mental status or HIV status in respect of recruitment training, promotion and terms and conditions of employment or other matters arising out of the employment.
(4)An employer shall pay his employees equal remuneration for work of equal value.”
Industrial cause allowed. Respondents to pay claimant total of Ksh. 6,971,346/= being damages for discrimination of the claimant on the basis of her HIV status and gross violation of her human dignity.
|History Advocates:||Both Parties Represented|
|Case Outcome:||Wrongful Dismissal And Unfair Termination|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
CAUSE NO. 1161 OF 2010
V M K ………………………………………CLAIMANT
C U E A………….........................…….....RESPONDENT
Mr. Julius Juma for Claimant.
Mr. James Okeo for Respondent.
This is a cry for justice by a young female adult against blatant discrimination at the work place for a period of (7) years for reasons of gender, pregnancy and HIV - AIDS status.
On 7th April, 2003 the Personnel Manager informed the claimant that she had been short-listed to attend an interview scheduled for 15th April, 2003 which she duly attended.
“Please note that before appointment you will be required to undergo a Medical Examination at our Infirmary, to establish your fitness to take up the position. The Medical Examination form is enclosed herewith.
A sample medical report which was given to Claimant is attached to the Statement of Claim on page 5. In the form is specified specific ailments to which one was to be examined.These do not include HIV-AIDS.
The doctor did not give her any counselling prior to that disclosure and therefore she was not prepared at all to receive that sort of information.
The Claimant has annexed to the Memorandum of claim her payslip for 31st December, 2005 which shows that she was paid a gross salary of Kshs.7,000/= and was not registered with the National Social Security Fund (NSSF) nor the National Hospital Insurance Fund (NHIF) as of that date.
11. She has also attached the payslip for her counterpart P M for 31st May, 2005, which shows that he earned a gross salary of Kshs.31,570.18 for the month comprising of a monthly salary of Kshs.19,980; house allowance of Kshs.6,500/=; travelling allowance of Kshs.3,500 totaling Kshs.29,980/=. Kshs.1,589.38 was overtime.
12. It is clear from the two payslips that P M who worked in the same position as the Claimant and was employed about one year before her now earned approximately 4.2 times more than her.
In addition, Pius was registered with NSSF and NHIF and the employer duly made monthly contributions for these social items. The Claimant did not enjoy similar contributions and cover.
“RE: Application for Permanent Terms.
This is to respectfully draw your attention to the above subject.
I have been working for the University as a telephone Operator for the last 5 years. The purpose of this letter is therefore to kindly request you to consider me for employment on permanent and pensionable terms.
For the last 5 years I have been getting Kshs.7,000/= without transport and house allowance. In the meantime please adjust my allowance.
I will be grateful if you will give my request a favourable consideration.
Thanking you in advance, I remain
The Respondent responded to her request seven (7) months down the line by appointing her on one (1) year’s contract by a letter dated 28th September, 2007.
The letter was written by Rev. Prof. J C. M R/V-C.
On 27th January, 2009 Rev. Prof. J C. M wrote a letter of renewal of the Claimant’s contract for one (1) year period backdated to 1st September, 2008 and ending on 31st August, 2009.
“I further inform you that this contract is final and therefore not renewable.”
The Claimant continued to earn a consolidated salary of Kshs.26,296/= per month without payment of any other benefits.
The fact that the contract was not renewable upon expiry on 31st August, 2009, was repeated twice in the short letter of renewal for emphasis.
On 12th October, 2008, she took maternity leave for 3 months in terms of the Employment Act, 2007 and returned to work on 9th January, 2009.
It was upon her return from maternity, when she received a renewal of one year contract on 27th January, 2009 backdated to 1st September, 2008 and therefore expired on 31st August, 2009.
While all this was happening and unknown to the Claimant, the Rev. Prof. J C. M, V C had on 31st August, 2009 written a letter and kept it in waiting for the claimant terminating her employment with effect from 21st August, 2009.
“31st August 2009
Ms. M K V
P. O. Box 62157
Dear Ms. K,
Re: Expiry of contract
The above matter refers.
This is to communicate to you that as per my letter of Ref. JCM/fn/016/2009 dated 27th January, 2009 the one year contract, expiring today 31st August, 2009 is not renewable.
Kindly arrange to clear with the Personnel Office.
Wishing you God’s blessings in your future endeavours.
Yours sincerely, in the Service of God’s Family,
Ref. Prof. J C. M
What would cause an employer of repute, a high institution of learning of choice not to be touched by the medical status of the claimant and her continued service and dedication notwithstanding segregative terms of service? What would cause an employer not to notice her courage and character notwithstanding unwarranted leakage to her colleagues of her HIV status; false hope in appointing her to a permanent and pensionable status with a promise of better terms, only to backtrack without blinking an eyelid? What exactly was in the mind of the Respondent in now terminating her service, 7 months into her pregnancy and denying her means of livelihood and dignity, when she needed support most?
The Respondent further admits that the Claimant was eventually placed on contract terms in September, 2007. That the contracts were of different durations the last two being for three months from January, 2010 to March, 2010. That she therefore ceased to work by exfluxion of time as the last contract was not renewed.
Similarly, the witness could not refute the allegations by the Claimant that the sole reason she was not employed on permanent and pensionable basis was due to her HIV status. He also could not refute her evidence that, her exit from employment was accelerated because she had become pregnant and was sent on 3 months maternity leave without pay.
It would appear that the Respondent was running away from responsibility on this matter, especially because no attempts were made to secure any of the key players in this matter and no proper explanation was given why any of them could not be secured to appear in court and speak to the delicate matters alleged by the Claimant against this institution of repute.
Her testimony brought out the salient features of the design to get rid of her from the employ of the Respondent for no other reason, but that she was a young woman, who had been subjected to an HIV test without her consent and had been found HIV positive. She aggravated the matter by protesting her treatment and demanding better and equal terms and conditions of employment.
The Employment Act, 2007 provides the basic standards of Employment in Kenya.
On matters of discrimination in employment, Section 5 (2) provides:
“An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.”
“No employer shall discriminate directly or indirectly against an employee or prospective employee or harass an employee or prospective employee –
Furthermore, subsection (4) provides;
“An employer shall pay his employees equal remuneration for work of equal value.”
The proceedings were in open court though deliberately done in the afternoons when no other matters were fixed for hearing and this provided a reasonable measure of confidentiality.
Section 5 (6) places the burden of disproving the case brought out by an employee on the basis of discrimination. The Respondent has dismally failed to discharge the onus in this matter
Article 28 reads;
“Every person has inherent dignity and the right to have that dignity respected and protected.
This is not only directed at the state vis a vis the people living in Kenya, but also is applicable horizontally as against individuals towards each other.
The employers in particular are enjoined through the various provisions of Labour Laws in Kenya to recognise, respect and protect through work policy and practice at the work place the dignity of each and every worker.
“Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”
This provision is pertinent in this matter and it behoves every employer, and the Respondent herein, a higher institution of learning, to offer equivalent opportunities to both women and men. Clearly, with respect to the Claimant herein, this was not realized.
“(i) Every person has the right to fair labour practices
and in Sub-Article (2) thereof, the Constitution provides;
“Every worker has the right –
The terms fair and reasonable are to be interpreted in the context of the standards at a particular work place, the national labour standards and with due regard to international labour standards.
In the present case, the remuneration accorded the Claimant, vis a vis her colleagues employed relatively at the same time, and doing work of equal value was far from fair and the working conditions she was subjected to were not reasonable at all in the context of the particular work place, and the national labour standards as we have already demonstrated.
Article 2 of the Constitution of Kenya 2010, titled Supremacy of this Constitution at sub-Article (5) reads;
“The general rules of international law ……….. shall form part of the law of Kenya”
whereas Sub-Article (6) provides;
“Any treaty or convention ratified by Kenya shall form part of the Law of Kenya under this Constitution.”
The effect of these provisions is to transform Kenya from a dualistic State where national law prevailed over international law to a monistic State where national laws are on an equal footing with international law.The provisions of the Constitution of course supersede other national and international law.
To this extend, the court shall refer to the international law relevant to this matter with a view to place our national standards referred to earlier in the context of the family of nations and more importantly for the court to demonstrate the concepts of discrimination and equality as applied in this matter.
The provisions of Article I of this Convention are important for interpretation purposes and reads as follows: -
“For the purpose of this Convention;
In the present case, the two co-workers of the Claimant earned housing allowance, travel allowance and were placed on a pension scheme in addition to the higher basic pay they earned vis a vis the Claimant. They were entitled to paid leave and leave allowance unlike the Claimant.
Sub Article (b) reads;
“the term equal remuneration for men and women workers for equal value refers to rates of remuneration established without discrimination based on sex.”
Therefore strictly speaking this is not a case for equal remuneration for work of equal value but rather it is a case of equal remuneration for equal work. It has in fact not been put in contention that the two named employees and the Claimant performed equal work.The only difference is that the claimant was described as a relief employee but worked shifts just like the other two at the same station. This is a fact established by the court to be objectively proven by the Claimant.
“The very meaning of the term “work of equal value” still gives rise to uncertainty and confusion in many jurisdictions. Simply put, the principle of equal remuneration for work of equal value is intended to address the undervaluing, and subsequent lower pay, of jobs undertaken primarily by women, when those jobs are found to be as demanding as the different jobs undertaken by men.
The principal thus contemplates the comparison of different jobs on the basis of their content. Accordingly, it is much broader than the notion of “equal pay for equal work”’
It is the court’s finding that the Claimant was remunerated differently for equal work for a period of seven (7) years.
Article 1 of Convention No. 111 – Convention Concerning Discrimination in Respect of Employment and Occupation, 1958 defines discrimination thus;
“For the purpose of this Convention the term discrimination includes;
“(c) There should be no discrimination against or stigmatization of workers in particular job seekers and job applicants on the grounds of real or perceived HIV status or the fact that they belong to regions of the world or segments of the population perceived to be at greater risk of or more vulnerable to HIV infection;
This effectively dealt a death knell to her career prospects with the Respondent University causing her persistent and well-targeted discrimination aimed at eliminating her from the employment of the Respondent which was eventually done in a most inhumane manner already captured in this judgment.
Towards the end, her pregnancy status accelerated the discrimination leading to the eventual termination.
“V is married in the church and lives a stable family life. I have known her for the last ten years. Since she joined CUEA back in 2000, she has been very hardworking at the switchboard. She is mature, polite and respectful. She has very good interpersonal skills. She is ready to serve in a busy place with speed and confidentiality. She normally works in shifts and she is regular, punctual and able to cope with pressure that comes with the operations at the switchboard.
I therefore highly recommend her for the position of switchboard operator at CUEA.”
This letter followed another advertisement of the position she held, dated 10th June, 2010, following the termination of her employment.
The Claimant responded to the advertisement by a letter dated 21st June, 2010, produced on page 21 of the Memorandum of Claim.
The discrimination was definitive and absolute. She was to remain at home as she was not capable or worth of any employment due to her HIV status.
This inspite the express provisions of Section 5 (3) (9) of the Employment Act 2007, which we referred to earlier.
“No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee
In the High Court of Judicature at Bombay – Original Side Writ Petition No. 1856 of 2002 X of Mumbai India Inhabitant – Petitioner vs. State Bank of India.
The Petitioner herein had worked for the Respondent as a sweeper for a period of 9 years on contract basis. In or about 1997, he applied for a job with the State Bank of India, the Respondent, in the position of part-time casual cum sweeper. He was recruited being found suitable for the job in an interview. He was then to undergo medical examinations which were duly carried out and he was given a certificate stating that he was fit to perform a sweeper’s job.
The Petitioner gave blood for ELISA test at the J.J. Hospital and was diagnosed that he is HIV asymptomatic.
The court found that the Petitioner could not be denied opportunity of employment on the basis of his HIV status. The Respondent bank was directed to consider whether to employ the Petitioner permanently or not on the basis of medical opinion regarding petitioner’s fitness to work and his ability to perform the duties and satisfy the job requirements as to whether he poses any risk or health hazard to others at the work place.The examination was to be conducted by an independent panel of doctors who shall report to the respondent bank.The Respondent was further directed to consider the petitioner’s employment on priority basis against first available vacancy. Meanwhile he was to continue working as a casual as and when work was available. per A.P Shah J.
Justice V.P. Tipnis and D. Trivedi, considered the case of a casual labourer, the Petitioner with the Respondent Corporation employed in 1982.
In 1984, the petitioner was interviewed for a vacancy against a regular post by the Respondent Corporation but was not selected. In 1986, the Petitioner was interviewed again and was employed as a casual labourer from 1986 till about 1994.
Following the examination and other specialized examination for lungs and eye test, he was listed as a fit person for regular employment.
Between 1991 and 1993, persons in the list below and above were employed in regular vacancies but he was not.
“1. In view of the modes of HIV transmission, a seropositive person’s fitness for work cannot be called into question by the purely, theoretical risk of virus transmission and any discrimination is unacceptable.
2. It is recommended that health personnel aware of a job applicant’s HIV seropositivity base their decision solely on the actual capacity of the individual to satisfy the job requirements. In this context only the usual aptitude tests and adherence to health and safety measures are of any value.
3. Routine screening of the HIV seropositivity in the work context must be prohibited: it is recommended that the WHO/ILO expert’s statement and the conclusions of the Council of European Community act as guidelines.”
“HIV screening in the workplace or for purposes of employment should not be undertaken. HIV screening should not be required for employees, candidates for employment or others to enter or reside in another country.”
Furthermore in an article “HIV/AIDS and discrimination in workplace. The ILO perspective” by Louis Nadaba, Equality and Human Rights Co- ordination Branch, ILO Geneva, the WHO/ILO principles inter alia include the following;
“Pre-employment: HIV/AIDS screening as part of an assessment of fitness to work is unnecessary and should not be required.”
The court observed, which I fully agree with;
“Testing for AIDS is socially irresponsible. If all employers screen out HIV positive people a “leper colony” of unemployed and unemployable people would be created, the social consequences of this (alienation, deprivation, discrimination) are undesirable”
In the light of the evidence before the court, the court identified for consideration whether the employer or State as the employer is entitled to scrutinise the medical fitness of an employee who is to be absorbed in its permanent services.
The court further noted that the medical fitness in the context of employment, must necessarily correlate to the requirements of the job, and interests of the persons and property at the workplace.
The court said;
“In the employment context, an otherwise qualified person is one who can perform the essential functions of the job in question.”
65. The court noted that, the overwhelming medical opinion and the opinion of persons qualified in the field show that firstly, that except through sexual intercourse and blood transfusion, there is no risk of transmission of HIV. Secondly, during asymptomatic period, the person may continue to be healthy and capable of performing the job requirements for a number of years which may range up to 18 years.
66. Relying on the case of Air-India Statutory Corporation v. United Labour Union reported in 1996 (6) Scales 70 (1997 AIRSCW 430) the Judge observed:
“This court has held that right to life to a workman would include right to continue in permanent employment which is not a bounty of the employer nor can its survival be at the volition and mercy of the employer. Income is the foundation to enjoy many fundamental rights and when work is the source of income, the right to work would become as such a fundamental right. Fundamental rights can ill-afford to be consigned to the limbs of undefined premises and uncertain application.”
I could not agree more.
In the alternative, the Applicant pleaded his dismissal was substantively and procedurally unfair in terms of Section 188 of the LRA.
In particular Section 97 of the Constitution of the Republic of South Africa Act, 108 of 1996 which states;
“1. Everyone is equal before the law and has the right to equal protection and benefit of the law;”
and Section 6 (1) of the Employment Equity Act, which specifically prohibits discrimination on grounds of HIV status inter alia.
Section 5 (3) (a) of the Employment Act, 2007 of Kenya as earlier said is similar to Section 6 (1) of the Employment Equity Act, aforesaid.
Whereas Article 28 of Kenya Constitution 2010 provides;
“Every person has inherent dignity and the right to have that dignity respected and protected.”
And in addition, Article 27 (1) is on all fours with Section 9 of the
South African Constitutional provision cited above on equality before the law, equal protection and equal benefit of the law.
“That the denial of employment to the appellant because he was living with HIV impaired his dignity and constituted unfair discrimination.”
The court further found that the discriminatory dismissal was not justified by an inherent job requirement as was the case in Leonard Digler Employee Representative Council & Others v. Leonard Digler (Pty) Ltd & Others (1997) 11 BLLR 1438 LC at 148 H.
In the present case, this was not raised as a defence and we will say no more of it at this stage.
The court is fortified by this decision in holding unequivocally that the decision not to employ the Claimant on permanent terms, and the final decision to terminate her employment were discriminatory in that they were solely based on the Claimant’s HIV status.
The Claimant seeks the court to award her the difference in salary she was getting and what her counterparts were earning for the period that she worked for the Respondent running from May, 2003 up to 22nd September, 2007 being the sum of Kshs.1,422,255/50.
The Respondent has not specifically disputed the calculation of the difference in pay over the period.
The court has made specific findings that the Claimant was employed around the same time with her two colleagues. The recommendation for appointment on permanent basis, she received pursuant to attending interviews confirms that she was equally qualified for the job. She had been specifically invited to a meeting to determine the new terms and conditions of service and had legitimate expectation that she was going to enjoy the new and equal terms equivalent to those enjoyed by her counterparts.
Indeed from the evidence before court, the job of Switchboard Operator/Receptionist was graded and had defined salary with the organization structure.
On the principle of equal pay for equal work, the court awards the Kshs.1,422,255/=.
The court has established that the Claimant went on maternity leave for three (3) months and was not paid any salary at all.
Upon return, she was put on a three (3) months contract which was renewed once and her employment was then terminated.
The court has already cited Section 29 of the employment Act, 2007 which provides that a female employee shall be entitled to three months maternity leave with full pay.
Accordingly, we find that the Respondent unlawfully withheld the salary for the Claimant whilst she was on maternity leave and accordingly find the Respondent liable to pay Kshs.53,342/= to the claimant being unpaid salary during the three (3) months maternity leave.
The Claimant produced overtime sheets from page 23 to 29 of the Statement of claim marked annexture “LK16”.
The Respondent did not counter this evidence at all and the court finds that the Claimant has established on a balance of probabilities that she had worked overtime as shown in these worksheets and was entitled to payment of Kshs.89,729/= being unpaid overtime worked.
She had been subjected to cruel and degrading treatment over a period of seven years at the work place by the Respondent due to her HIV status.
The particulars of discriminatory conduct have been enumerated earlier and include keeping her on casual employment selectively, paying her an inordinately low salary for equal work compared to her counterparts; refusing her recruitment on permanent basis and continuing to employer her on casual basis with very low pay comparative to her colleagues in the same position for a long period; testing her HIV status without consent from her; disclosing her HIV status to her superiors and colleagues and thereby violating her right to privacy. Keeping her on short and progressively shorter contracts, with unequal terms due to the HIV status; refusing her paid maternity leave followed by an immediate termination of employment upon return from the unpaid maternity leave.
Furthermore, the conduct of the Respondent grossly violated Article 27 of the Constitution and in particular her right to equal benefit of the law and equal enjoyment of all rights was grossly violated by the discriminative conduct of the respondent inspite of specific provisions of the labour laws that guaranteed the claimant specific rights and equality at the workplace.
Accordingly, the court finds firstly, the Claimant is entitled to general and exemplary damages in the circumstances of the case.
Section 50 of the Act, provides;
“In determining a complaint or suit under this Act involving wrongful dismissal or unfair termination of the employment, of an employee the Industrial Court shall be guided by the provisions of Section 49.”
Having said that, and specifically that the Respondent has failed to discharge its onus in terms of Section 47 (5) in that, it has failed to justify the grounds for the termination of the employment of the Claimant, the court having found that the termination was a culmination of various discrimination against the Claimant which conduct was unlawful and in violation of human rights of the Claimant, the court finds that the termination did not meet the threshold provided under Section 45 (2) (a) of the employment Act in that, the termination was not for a valid reason and further, it was not done in accordance with a fair procedure contrary to Section 45(2) (c). This especially was done under pretext that it was by effluxion of time when the evidence largely shows that the real reason was due to the HIV status of the Claimant.
In view of this gross abuse, by an institution of high standing, which should know better, the court awards the Claimant maximum ompensation for the unlawful and unfair termination being equivalent of twelve (12) months gross salary of the claimant at the time of termination in the sum of Kshs.406,020/=.
Exemplary damages for discrimination
The court has documented well the litany of violations subjected on a young woman just because of her HIV status. The court will not belabour these particulars any further but acknowledge the courage of the Claimant and her sense of dignity inspite of gross violation of her human dignity at the hands of the Respondent for a period of about seven (7) years.
As stated by Hon. Justice Majanja in Samura Engineering Limited & 10 Others v. Kenya Revenue Authority (2012) eKL12, “the purpose of the right to privacy is to protect human dignity which is itself a right under Article 28”
The judge went ahead to award Kshs.1.2 million to the Plaintiff for violation of this right.
In Rookes vs. Bernard (1964) AC 1129, Lord Devlin C.J. discussing exemplary damages stated;
“that first it is awarded against tortuous intrusions or trespasses that are profit motivated i.e wrongful landlord evictions of their tenants or secondly where there is oppressive conduct by government agents and thirdly where the act of the defendants has caused distress and intolerable anxiety and to be awarded as a punishment.”
In the case of Daniel Musinga T/A Musinga & Co. Advocatges v. Nation Newspapers Limited (2006) EKLR, the court in awarding the Plaintiff Kshs.10,000,000/- damages for defamation stated;
“The court has to look at the whole conduct of the parties before action, after action and in compensatory damages such sum, as will compensate him for the wrong he has suffered. An award of damages must cover injured feelings, the anxiety and uncertainty undergone during the court trial.”
In the present case the anxiety of the Claimant upon being recommended for appointment permanently with prospects of much higher pay; no communication from the respondent until 2nd April, 2003 when she received the letter inviting her to discuss new terms, until five (5) years down the line on 28th September, 2007 when she was given a one year contract was too much to bear.
The blatant confrontation by the Human Resource Office who told her that people with HIV status could not be employed permanently. The testing of HIV status without her consent and the disclosure of her status to 3rd persons without her authority demonstrates the seriousness of the violations and the need to compensate the claimant for the hurt feelings and eventual loss of employment due to HIV status.
Having considered all these matters and the failure by the Respondent to confront its despicable conduct by avoiding to bring the actual perpetrators before court to explain themselves, the court awards damages in the sum of Kenya shillings five million (Kshs.5,000,000/=) to the Claimant.
In the final analsyis the respondent is to pay the Claimant;
Total award: Kshs.6,971,346/=.
It is so ordered.
Dated and delivered at Nairobi this 8th day of November. 2013.
MATHEWS N. NDUMA