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ELRCPartially AllowedCause No. 612 of 2015· [2016] KEELRC 1550 (KLR)

Janine Buss v Gems Cambridge International School Limited [2016] KEELRC 1550 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
11 February 2016
MMM. Mbaru
5,843 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a teacher over Kshs.12 million after finding her employer unfairly fired her and discriminated against her for taking maternity leave.

What this practically means

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Executive summary

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The Claimant, a South African national, was employed by the Respondent school on 13th March 2012 as School Registrar with additional roles of Parent Relations Executive and Marketing Officer. On 13th February 2015 she was abruptly issued a termination letter citing clause 11.1 of her contract but setting out no reasons. She alleged the termination followed her maternity leave of February to June 2014, after which her duties, reporting lines and position were altered without consultation, and her salary was excluded from inflation reviews granted to other staff. The Respondent filed a defence but called no witness and filed no submissions. The court framed four issues: unfair termination, infringement of the right to fair labour practices, breach of contract, and remedies. Holding that a contractual right to terminate on notice does not dispense with the statutory requirement of lawful and fair reasons, the court found the termination substantively unfair under sections 45 and 47 of the Employment Act and procedurally unfair for want of a hearing under section 41. The court further found the post-maternity-leave changes and salary exclusion discriminatory on the ground of pregnancy, contrary to articles 27 and 41 of the Constitution and section 5 of the Employment Act, with the burden on the employer unmet. The claims for salaries until retirement and notice pay were declined. The court entered judgment for the Claimant with declarations, compensation of Kshs.6,004,164.00 being 12 months' gross salary under section 49, damages of Kshs.6,000,000 for discrimination and unfair labour practices, costs, and an unconditional certificate of service.

Key legal issues

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01

Unfair termination of employment

Holding

The termination was both substantively and procedurally unfair as no valid reason was given and no hearing was afforded

Reasoning

The termination letter cited clause 11.1 of the contract but set out no reasons. The Respondent called no witness and gave no explanation for departing from the procedure under section 35(4). The right to terminate carries the duty to give lawful and fair reasons. Further, no prior notice, appraisal or hearing was given to enable the Claimant to defend herself as required by section 41.

p. 6
02

Discrimination and unfair labour practices on the ground of pregnancy and maternity leave

Holding

The variation of the Claimant's duties and reporting lines upon resumption from maternity leave and the failure to review her salary while others got increments were discriminatory and unfair labour practices

Reasoning

The Respondent changed the Claimant's duties and reporting lines after maternity leave without consultation or consent, and excluded her from salary reviews applied to other employees. Such differential treatment on a protected ground (pregnancy) breached article 27 and 41 of the Constitution and section 5 of the Employment Act, and the employer offered no evidence to displace the burden upon it.

p. 7
03

Breach of contract

Holding

Selective application of the Respondent's policies and failure to review the Claimant's salary while other employees received increments breached the contractual term that all Respondent policies applied to her

Reasoning

The contract obliged the Respondent to apply its policies, rules and regulations to the Claimant equally. Where a salary review was done for other employees to factor inflation, the Claimant should have benefited equally. The court found the differential treatment was an act in defiance of the agreed contractual terms.

p. 7
04

Remedies

Holding

Maximum compensation of 12 months' gross salary under section 49, general damages of Kshs.6,000,000 for discrimination, and an unconditional certificate of service were awarded; claim for salaries to retirement and notice pay declined

Reasoning

The court considered the Claimant's inability to secure new employment, the absence of a certificate of service, and her ordeal as an expatriate in assessing compensation under section 49(1)(c) based on gross monthly wage of $4,199.50, converted at the prevailing exchange rate, and awarded damages for the constitutional violations.

p. 9

Legal principles established

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  • It is not sufficient for an employer to simply issue a letter of termination because the employment contract provides for it; there must exist a lawful and fair reason for termination
  • Section 41 of the Employment Act sets mandatory pre-termination procedures, and failure to give an employee a hearing renders termination procedurally unfair
  • Varying an employee's terms to her disadvantage because she took maternity leave is discriminatory and an unfair labour practice
  • In a claim of discrimination under section 5 of the Employment Act, the employer bears the burden of proving that the discrimination did not take place

Court orders

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  1. 1.A declaration that the Claimant was unfairly terminated
  2. 2.A declaration that the Claimant was discriminated against and the Respondent engaged in unfair labour practices against the claimant
  3. 3.Compensation awarded at Kshs.6,004,164.00
  4. 4.Damages awarded at Kshs.6,000,000.00
  5. 5.Costs of the suit to the Claimant
  6. 6.The Claimant shall be issued with a certificate of service forthwith

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1), 41(2), 27(4)
  • Employment ActSections 3(1), 3(6), 5(3), 5(6), 5(7), 35(4), 36, 41, 45, 46, 47, 49, 49(1)(c), 51
Jurisdiction invoked
Article 41(1) of the Constitution and the Employment Act, disputes on employment and labour relations

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Janine Buss v Gems Cambridge International School Limited [2016] KEELRC 1550 (KLR)", Case Analysis (2016). Cause No. 612 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1550/eng@2016-02-11

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