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ELRCPartially AllowedCause No. 964 of 2013

Grace Wairimu Njoroge v Niti Computers [2014] KEELRC 1499 (KLR)

Industrial Court of Kenya
19 December 2014
1,100 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, Grace Wairimu Njoroge, sued Niti Computers for unlawful and wrongful termination of employment. She was employed in February 2010 as a Sales Representative at a salary she pleaded as Kshs.24,575 per month. In October 2012 she went on maternity leave with the respondent's knowledge. On resuming work she was told there was no vacancy, was asked to remain at home, and after about four months was informed there was no more work for her; her contract was thus terminated without notice, written reasons or a hearing. The respondent entered appearance but filed no defence and did not attend the hearing, which proceeded after consent-taken dates. The court held that an undefended suit must still be analysed on its own merits. It found the termination procedurally and substantively unfair, particularly as the claimant lost her job on return from maternity leave without just reason. The court awarded six months' pay as compensation (Kshs.147,450.00), salary for the maternity leave period October to December 2012 (Kshs.73,750.00 as ordered), and service pay at 15 days per completed year (Kshs.12,285.50), having found evidence of non-remittance of statutory dues. Severance pay was declined because the case was not a redundancy, and the NSSF, NHIF and PAYE deductions could not be paid to the claimant as they were owed to the statutory bodies. Each party was ordered to bear its own costs. The claim therefore partially succeeded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the claimant's employment upon her return from maternity leave was unfair and wrongful
  2. 2.Whether the claimant is entitled to compensation, salary arrears for October to December 2012, notice pay, severance pay and unremitted statutory deductions (NSSF, NHIF, PAYE)
  3. 3.What monthly salary should be used in computing the award, given the discrepancy between the pleaded salary and the payslips

Key legal issues

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01

Whether the termination was unfair

Holding

The termination was unfair; the claimant lost her job while on maternity leave without justification, notice or a hearing

Reasoning

The claimant went on maternity leave with the respondent's knowledge and on resumption found her job gone. There was no notice, no written reasons and no hearing, nor any allegation of misconduct or poor performance. The court held this was both procedurally and substantively unfair and awarded the equivalent of six months' pay as compensation at her monthly salary of Kshs.24,575.00.

p. 2
02

Entitlement to salary for the maternity leave period

Holding

The claimant was awarded salary from October to December 2012 (Kshs.24,575.00 x 3 = Kshs.73,725.00, entered as Kshs.73,750.00)

Reasoning

The court found the claimant entitled to her pay while on maternity leave until the date she was due to resume work, computed as three months' salary. The final order recorded this as unpaid salary at Kshs.73,750.00, a slight discrepancy from the computed Kshs.73,725.00.

p. 2
03

Severance pay and unremitted statutory deductions

Holding

Severance pay declined as this was not a redundancy; unremitted NSSF, NHIF and PAYE cannot be paid to the claimant, but service pay at 15 days per completed year was awarded (Kshs.12,285.50)

Reasoning

Severance pay is a redundancy entitlement and the facts disclosed no redundancy. Claims for unremitted statutory dues belong to NSSF, NHIF and KRA and cannot be awarded to the employee. However, evidence of non-remittance entitled the claimant to service pay at 15 days for each year worked; with one completed year from 10th February 2010 to termination in December 2012, she was awarded Kshs.12,285.50.

p. 2

Legal principles established

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  • Termination without notice, without written reasons and without a hearing is procedurally and substantively unfair
  • Termination of an employee who is on or returning from maternity leave, without just reason or notice, is unfair
  • Even an undefended suit must be analysed on its own merits
  • Where an employer has not remitted statutory deductions, service pay at 15 days' pay for each year worked is due

Court orders

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  1. 1.Declaration that the termination was unfair
  2. 2.Compensation of Kshs.147,450.00 (6 months' pay at Kshs.24,575.00)
  3. 3.Unpaid salary for October to December 2012 at Kshs.73,750.00
  4. 4.Service pay at Kshs.12,285.50
  5. 5.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Industrial Court over disputes relating to employment and unfair termination

Relief refused

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Severance pay

Severance pay applies to redundancy, and this was not a redundancy case

p. 2

Unremitted deductions to NSSF, NHIF and PAYE

These are statutory dues owed to the statutory bodies and cannot be awarded to the claimant; instead service pay was awarded

p. 2

Costs

Each party will bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where an employee is terminated without notice, without written reasons for the same and without being taken through a hearing process, the same becomes procedurally and substantively unfair.
p. 2Unfair termination - procedural and substantive fairness
In this case where the claimant was on her maternity leave with the knowledge of the respondent and when she resumed she found she had no job without any just reason or notice, this is unfair.
p. 2Maternity leave and unfair termination
However despite the fact that the suit is undefended, the same must be analysed on its own merits.
p. 2Undefended suits
Judgement is entered for the claimant as against the respondent in the following terms; a. The termination was unfair; b. Compensation at Kshs.147,450.00; c. Unpaid salary at Kshs.73,750.00; d. Service pay at Kshs.12,285.50; and e. Each party will bear their own costs.
p. 3Final orders and disposition

Issues in the judgment

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minor

Computed maternity leave salary (Kshs.24,575 x 3 = Kshs.73,725.00) differs from the amount in the final orders (Kshs.73,750.00)

minor

Judgment states the claimant applied for maternity leave in October 2012 and 'was to resume work in December 2013', which conflicts with the evidence that she was to resume in January 2013 and the award covering October to December 2012

minor

Heading misspelled as 'JUSDGEMENT' in the judgment text

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Grace Wairimu Njoroge v Niti Computers [2014] KEELRC 1499 (KLR)", Case Analysis (2014). Cause No. 964 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1499/eng@2014-12-19

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