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ELRCPartially AllowedMemorandum of Claim dated 29th September, 2011 (number not stated in judgment)· [2014] KEELRC 708 (KLR)

Veronica Wambui Waweru v Green Belt Movement [2014] KEELRC 708 (KLR)

Industrial Court (Employment and Labour Relations Court)
4 February 2014
2,273 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court awarded a lawyer 12 months' salary after her employer disguised pregnancy discrimination as redundancy.

What this practically means

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Executive summary

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The Claimant, employed as Legal Counsel from 1st July 2009, was declared redundant on returning from maternity leave and her employment terminated. She claimed terminal benefits, a certificate of service, and damages for wrongful, unfair and malicious termination, contending that Section 40 redundancy procedures were not followed, that she was replaced by a junior reliever engaged during her maternity leave, and that she was victimised on account of pregnancy. The Respondent admitted the employment and the failure to notify the area Labour Officer, asserting that legal services were outsourced following donors' views and that final dues of Kshs.67,318/= were computed but the Claimant declined to sign a full-and-final disclaimer. Its witness, Professor Karanja Njoroge, could not convincingly explain the unsigned minutes or the recruitment of two young lawyers, including a relative of the late Chairperson, Professor Wangari Maathai, after the retrenchment. The court dismissed the claims for payment in lieu of notice and severance (already paid), further notice pay, house allowance, accrued leave and refund of medical bills, holding the salary consolidated and no medical cover scheme existed under Section 34(1). However, it found the termination was a sham redundancy targeting the Claimant because of her pregnancy, violating Sections 45(1), 45(2)(a), 45(2)(c) and 5(3) of the Employment Act. The court awarded maximum compensation of twelve months' salary (Kshs.429,000/=) under Section 49(1)(c), ordered issuance of a certificate of service under Section 51, and awarded the Claimant costs of the suit. Judgment delivered at Nairobi on 4th February 2014 by Principal Judge Mathews N. Nduma.

Key legal issues

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01

Whether the redundancy was genuine and lawful

Holding

The Claimant was wrongly targeted for retrenchment on the basis of her pregnancy; the termination violated Section 45(1) as unfair, with no valid reason and no fair procedure under Section 45(2)(a) and (c)

Reasoning

The court found that the reliever engaged during the Claimant's maternity leave was retained in her place, and another junior lawyer related to the founder was also recruited, undermining the claim of redundancy. The Respondent admitted non-compliance with Section 40(1) notification of the Labour Officer. The termination effected during maternity leave was found callous, malicious, and in violation of Sections 45(1), 45(2)(a) and 45(2)(c).

p. 5
02

Whether the Claimant was discriminated on grounds of pregnancy

Holding

Yes - violation of Section 5(3) established; she was discriminated against on grounds of pregnancy

Reasoning

Beyond discharging her burden under Section 47(5), the Claimant established that she was victimised on account of pregnancy, declared redundant upon return from maternity leave and replaced by a junior reliever. The court found malicious intent in the timing and manner of termination by the Executive Director, making the conduct deplorable.

p. 5
03

Appropriate remedy for unlawful and unfair termination

Holding

Maximum compensation of twelve months' salary under Section 49(1)(c) awarded, plus certificate of service under Section 51

Reasoning

Given the callous, malicious and discriminatory manner of termination by a highly regarded institution, the court held this a proper case for maximum compensation under Section 49(1)(c), computed at twelve months' salary of Kshs.429,000/=, and ordered issuance of a certificate of service forthwith.

p. 5

Legal principles established

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  • An employer who replaces a redundant employee with a junior, less qualified new employee has not demonstrated a valid reason for redundancy
  • Failure to notify the Labour Officer one month in advance of retrenchment breaches Section 40(1) of the Employment Act
  • Under Section 34(1) of the Employment Act, an employer without a medical cover scheme is not obliged to meet an employee's maternity medical bills beyond statutory NHIF remittances

Court orders

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  1. 1.Respondent to pay the Claimant maximum compensation for unlawful and unfair termination equivalent to twelve (12) months salary in the sum of Kshs.429,000/=
  2. 2.Respondent to issue the Claimant with a certificate of service forthwith in terms of Section 51 of the Employment Act, 2007
  3. 3.Respondent to pay the costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 40(1)
  • Employment Act, 2007Section 40(1)(f)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 34(1)
  • Employment Act, 2007Section 5(3)
Jurisdiction invoked
Employment Act, 2007 (Sections 40, 45, 47(5), 49(1)(c), 51, 34(1), 5(3)) - first-instance employment claim

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Veronica Wambui Waweru v Green Belt Movement [2014] KEELRC 708 (KLR)", Case Analysis (2014). Memorandum of Claim dated 29th September, 2011 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/708/eng@2014-02-04

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