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ELRCPartially AllowedELRC Cause Number 619 of 2015 (formerly recorded as 618 of 2015)· [2017] KEELRC 1746 (KLR)

Claudine Wanjiku Mboce v Exon Investments Limited & another [2017] KEELRC 1746 (KLR)

Employment and Labour Relations Court
24 February 2017
3,257 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Mombasa court ordered an employer to pay Kshs. 1.15 million for firing a woman on the day she returned from maternity leave without giving a valid reason.

What this practically means

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Executive summary

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The Claimant, employed as Administration Officer/Personal Assistant on a fixed term contract, went on maternity leave on 15th September 2014 and received a letter of termination on 15th December 2014, the date she was to resume work. The letter gave no reasons. The Respondents justified termination in evidence on the alleged theft of Kshs. 59,000 entrusted to her by the 2nd Respondent. The Court held theft was not established: the money was voluntarily entrusted, the Claimant's post-dated cheque was a precaution for her maternity leave, no police report was made, salary continued to be paid, and there was no disciplinary hearing. Termination was therefore unfair for lack of valid reason and fair procedure under Sections 41, 43 and 45 of the Employment Act. On discrimination, the Court found the timing of termination on the return date from maternity leave, combined with a false explanation, permitted the inference drawn in G.M.V. v Bank of Africa Kenya Limited that the employer was covering up a discriminatory purpose, breaching Section 5(3)(a) and Section 29(2) of the Employment Act, ILO Convention 183, and Article 27(5) of the Constitution. Kagendo was distinguished. Damages for pregnancy discrimination were held not capped at 12 months' salary; the Court awarded the pleaded Kshs. 660,000 as general damages, plus 9 months' salary (Kshs. 495,000) for unfair termination. Claims for re-offer of leave days and service pay failed as these had been paid. Costs and interest at 14% per annum from the date of judgment went to the Claimant.

Key legal issues

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01

Whether termination was for a valid reason

Holding

The asserted ground of theft was not valid: the money was entrusted to the Claimant, there was no intention to deprive the owner, no police report, and salary continued to be paid

Reasoning

The Court analysed the meaning of theft and found the 2nd Respondent voluntarily handed the Claimant Kshs. 59,000 with no repayment date; her post-dated cheque was a prudent precaution ahead of maternity leave, not an admission of theft. The Respondents continued paying her salary, made no police report, and the Accounts Office had no record of embezzlement. The letter of termination stated no reason at all, so the reason asserted in evidence could not sustain the dismissal.

p. 5
02

Whether termination followed a fair procedure

Holding

No disciplinary hearing was held; the Directors decided to terminate in the Claimant's absence and the termination letter gave no reasons

Reasoning

Section 41 and 45 of the Employment Act require notice and a hearing before termination. The 2nd Respondent admitted he deliberated with his brother/co-director and did not see the need for a disciplinary hearing. No letter of warning was issued and no complaint was lodged with the Police. The termination letter itself asserted no reasons needed be given. Procedural fairness was therefore violated.

p. 5
03

Whether the Claimant was discriminated against on account of pregnancy

Holding

Yes - the timing of termination on her return date from maternity leave, coupled with a false explanation, permitted inference of discriminatory purpose

Reasoning

Relying on G.M.V. v Bank of Africa Kenya Limited, the Court held a prima facie case of pregnancy discrimination was made out and the Respondents failed to show a non-discriminatory reason. The termination was timed to coincide with her return date, breaching Section 29(2) on the right to return to work, Section 5(3)(a) of the Employment Act, ILO Convention 183, and Article 27(5) of the Constitution. Kagendo was distinguished.

p. 5
04

Quantum of damages for pregnancy discrimination

Holding

General damages of Kshs. 660,000 awarded as pleaded; not subject to the 12-month cap under Section 49

Reasoning

The Court adopted a polycentric socio-economic approach rather than the linear capping mentality of the old industrial justice system. Damages for employment discrimination are general damages in the court's discretion. The pleaded Kshs. 660,000 was neither inordinately high nor low given the circumstances of the violation, and was awarded as prayed.

p. 6

Legal principles established

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  • An employer must show valid reasons for termination and follow a fair procedure under Sections 41, 43 and 45 of the Employment Act; termination of an employee on maternity leave without a disciplinary hearing breaches procedural fairness.
  • Where an employer gives a false explanation for termination coinciding with an employee's pregnancy, the trier of fact may reasonably infer discriminatory purpose, shifting the burden to the employer to justify a non-discriminatory reason.
  • Damages for pregnancy discrimination are not capped at 12 months' salary as compensation for unfair termination is under Section 49 of the Employment Act; they are general damages determined by the Court.

Court orders

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  1. 1.A declaration that termination was unfair
  2. 2.A declaration that the Claimant was discriminated against on account of her pregnancy
  3. 3.The Respondents to pay the Claimant 9 months' salary as compensation for unfair termination at Kshs. 495,000
  4. 4.The Respondents to pay the Claimant general damages for pregnancy discrimination at Kshs. 660,000, total Kshs. 1,155,000
  5. 5.Costs to the Claimant
  6. 6.Interest at 14% per annum from the date of Judgment

Authorities

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Legislation

  • Employment ActSections 41, 43, 45
  • Employment ActSection 46
  • Employment ActSection 5(3)(a)
  • Employment ActSection 29(2)
  • Employment ActSection 49
  • Constitution of KenyaArticle 27(5)
  • International Labour Organization Convention 183 of 2000 on Employment Protection & Non-Discrimination

Cases cited (2)

  • G.M.V. v. Bank of Africa Kenya Limited
    [2013] e-KLR
  • Everlyn Lynn Kagendo v. Statpack Industries Limited
    Cause Number 2081 of 2011 [Nairobi]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the Constitution of Kenya 2010 (Article 27(5) invoked); Article 162(2) implied but not expressly cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Claudine Wanjiku Mboce v Exon Investments Limited & another [2017] KEELRC 1746 (KLR)", Case Analysis (2017). ELRC Cause Number 619 of 2015 (formerly recorded as 618 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1746/eng@2017-02-24

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