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ELRCPartially AllowedCause 1600 of 2011· [2012] KEELRC 20 (KLR)

JANE WANGARI NJOROGE v E.N. PERTET T/A JOLIDAY NURSARY SCHOOL [2012] KEELRC 20 (KLR)

Industrial Court of Kenya
12 October 2012
MMM. W. Mbaru
1,849 words in judgment
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The bottom line

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A Kenyan court ruled an employer unfairly fired a teacher on maternity leave and must pay her compensation because it couldn't prove why.

What this practically means

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Executive summary

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Jane Wangari Njoroge, a nursery school teacher employed by the respondent since 1990, claimed unlawful termination of employment. She asserted that while on approved maternity leave (child due February 2010) she was terminated in April 2010 on reporting back, was told she was too old to work, and was offered a cheque for two months' salary only, which she refused. The respondent contended she took leave early without authority, absconded after her leave lapsed in March 2010, and was otherwise indisciplined. The court noted the parties did not produce the leave application form and, since the respondent retained the approved form and later used the leave dates to justify termination, the burden lay on the respondent to prove a different commencement date. Relying on sections 29, 35, 41, 43(2) and 45 of the Employment Act, the court held the claimant was entitled to three months' paid maternity leave plus annual leave, that the allegation of absconding was unsupported by any written warning or evidence, and that the termination lacked valid reason and fair procedure. The claim for NSSF dues was refused for lack of evidence of non-remittance. Judgment was entered for the claimant: one month's salary in lieu of notice, salary for January to April, six months' salary as compensation for unlawful loss of employment (total Kshs. 156,616.00), a Certificate of Service, and costs of the suit.

Key legal issues

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01

Entitlement to paid maternity leave and right to return to work

Holding

Under Section 29 of the Employment Act the claimant was entitled to three months maternity leave with full pay and to return to her job, without forfeiting annual leave.

Reasoning

The court noted the statutory guarantee of three months' maternity leave on full pay and the employee's right to resume her former job on no less favourable terms. The leave application was lodged with the employer, which approved and retained the form; in the circumstances the court accepted the claimant's version that the leave ran to 20 April 2010, and annual leave was not forfeited.

p. 2
02

Burden of proving reasons for termination

Holding

The employer bore the burden of proving the reason for termination, and its allegation of absconding was unsupported by any evidence, rendering the termination unfair.

Reasoning

The respondent alleged the claimant absconded but produced no warning letter or documentary evidence. Section 43(2) of the Employment Act requires the employer to prove reasons for termination; failing that, termination is deemed unfair under section 45. The court therefore accepted the claimant's account that she lawfully resumed on 20 April 2010 and was told she was too old to work.

p. 2
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Procedural fairness in termination

Holding

The termination breached sections 35 and 41 of the Employment Act: no written notification of grounds, no hearing and no chance to appeal.

Reasoning

The court found the manner of communication of the termination did not comply with section 35 or any other written law; the claimant was neither notified of the grounds in writing nor granted a hearing as required by section 41. For an employee of over 20 years with no disciplinary record, the employer's conduct was overzealous and designed to avoid terminal dues.

p. 3
04

Staff welfare/Sacco loan balance as a set-off

Holding

Any loan balance owed to the staff welfare association was immaterial and the claimant's personal responsibility.

Reasoning

The respondent suggested an unpaid Sacco loan should reduce terminal dues. The court held that welfare arrangements run separately and independently of management interference, and whatever loan balances were owed were the claimant's responsibility to clear with her welfare association, so this could not be used to deny her terminal dues.

p. 3

Legal principles established

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  • Where an employer disputes the dates of approved maternity leave and relies on it to terminate, the burden rests on the employer to prove the leave commenced on a different date; failing proof of reasons for termination, the termination is deemed unfair.
  • Warnings to an employee must be in writing, and if verbal, must be confirmed by a witness.

Court orders

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  1. 1.Declaration that the claimant suffered unlawful loss of employment
  2. 2.Respondent to pay one month salary in lieu of notice at Kshs. 14,480.00
  3. 3.Respondent to pay salary for January, February, March and April 2011 amounting to Kshs. 55,256.00
  4. 4.Respondent to pay six months salary as compensation for unlawful loss of employment amounting to Kshs. 86,880.00
  5. 5.Claimant to be given a Certificate of Service
  6. 6.Costs of the suit granted to the claimant

Authorities

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Legislation

  • Employment ActSection 29
  • Employment ActSection 43(2)
  • Employment ActSection 45
  • Employment ActSection 35
  • Employment ActSection 41
Jurisdiction invoked
Industrial Court of Kenya jurisdiction over employment disputes (Cause filed under the court's employment jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "JANE WANGARI NJOROGE v E.N. PERTET T/A JOLIDAY NURSARY SCHOOL [2012] KEELRC 20 (KLR)", Case Analysis (2012). Cause 1600 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/20/eng@2012-10-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.