Marion Mwangi v Magnet Ventures Limited [2016] KEELRC 27 (KLR)
The bottom line
#Kenya's Employment Court ruled that ignoring a pregnant employee counts as pregnancy discrimination and that letting probation lapse automatically confirms employment.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimant's employment - was there a valid subsisting contract and did she abscond?
A valid employment contract existed dated 30th June 2014 and was never lawfully terminated; the probation lapsed on 10th October 2014 and employment was confirmed by operation of law; the contract remained valid for 9 months
The Respondent admitted issuing a written contract but never exercised its contractual right to terminate. Under section 9 of the Employment Act the employer is responsible for the written contract and changes must comply with section 13 in writing. Failing to issue any notice, warning or termination letter while leaving the contract intact cannot amount to employee desertion. The probation lapsed without extension, confirming employment by operation of law.
Whether the Claimant was discriminated against on account of pregnancy
Yes - the Claimant was sent away and her absence sanctioned solely because of her pregnancy, contrary to Article 27 of the Constitution and sections 5(3) and 46(a) of the Employment Act
The Court found the Human Resource Manager's evidence untruthful: she admitted holding the Claimant's contacts but claimed the Claimant was not in the Respondent's system and was never followed up. A reasonable employer would have enquired after a new employee who attended an employer-directed training. The Claimant's absence was with the knowledge of the HR Manager who had learned of the pregnancy. Section 5(7) places the burden of disproving discrimination on the employer, which the Respondent failed to discharge.
Whether the termination was unfair
Yes - termination without notice, hearing or reasons violated sections 41, 43 and 45 of the Employment Act and Article 41 of the Constitution
The Respondent, through a senior and experienced HR Manager, never issued any notice, hearing, warning or termination letter. Keeping the contract and doing nothing while the employee stayed away was an unfair labour practice. Section 42 protections for probationary termination were unavailable since the probation had lapsed and the reliance on it would excuse the employer's failure to act.
What remedies are appropriate
Salary arrears, one month's notice pay, damages of Kshs.50,000 for the discrimination (converted from the statutory fine under sections 5(6) and 88 of the Employment Act), and a Certificate of Service
Salaries were due under the still-valid contract up to the termination date referenced by the Claimant. Notice pay was due under the contract and section 35. For discrimination, the maximum statutory fine of Kshs.50,000 was converted into damages. Higher comparative damages in Janine Buss were distinguished because that employee had long service whereas this Claimant worked only 2 days.
Legal principles established
#- Where an alleged probationary period lapses without extension or confirmation issues, employment is confirmed by operation of law and section 42 protections for probationers cease to apply
- An employer who leaves an employee's contract of employment undisturbed and does nothing cannot later claim the employee absconded or terminated her own contract
- In discrimination proceedings under section 5 of the Employment Act, the employer bears the burden of proving that discrimination did not take place as alleged
- Acts of discrimination in employment need not be overt; the mere perception that conduct sets an employee apart to deny a benefit is sufficient
- Pregnancy, or any reason connected with it, is not a fair reason for dismissal or disciplinary penalty against a female employee
Court orders
#- 1.A declaration that the Claimant was unfairly terminated from her employment with the respondent
- 2.A declaration that the Claimant was discriminated against by the respondent
- 3.Salaries due awarded at Kshs.900,000.00
- 4.Notice pay awarded at Kshs.100,000.00
- 5.Damages awarded at Kshs.50,000.00
- 6.The Respondent shall issue a Certificate of Service in accordance with section 51 of the Employment Act
- 7.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution; discrimination claims founded on Article 27 of the Constitution and sections 5 and 46(a) of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marion Mwangi v Magnet Ventures Limited [2016] KEELRC 27 (KLR)", Case Analysis (2016). Cause No. 1569 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/27/eng@2016-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.