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ELRCPartially AllowedCause No 1764 of 2016· [2018] KEELRC 1965 (KLR)

Felistas Njeri Waweru v Chairman, Board of Governors, Kairi Secondary School [2018] KEELRC 1965 (KLR)

Employment and Labour Relations Court
21 May 2018
1,426 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan school wrongfully sacked a bursar for missing work on maternity leave, and the court awarded her damages and notice pay.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 27 December 1991 and risen to Bursar, applied for maternity leave on 14 April 2005, the day she had a premature delivery following hospitalisation. By a letter of 14 May 2005 the Board rejected the application and directed her to resume work on 16 May 2005. She did not report, was summoned before the Board, and on 25 May 2005 was summarily dismissed on grounds including desertion, insubordination and incitement. She sued in the High Court in October 2006, alleging violation of her rights as a woman and claiming salary arrears, allowances, service gratuity, unpaid leave and 12 months' pay in lieu of notice. The Respondent never entered appearance or filed a defence. The Court condensed the ten issues pleaded into five: unfair dismissal, violation of rights, discrimination, breach of contract, and remedies. Holding that dismissals in 2006 were governed by the common law notice regime, the Court found the Claimant had lawful cause to be absent on maternity and medical grounds, or at least entitlement to convalescence, and that the dismissal was wrongful, entitling her to one month's pay in lieu of notice (Kshs 10,951/-). Denial of the statutory right to maternity leave, which directly led to the dismissal, was a violation warranting damages of Kshs 300,000/-. The discrimination and civil-servant contractual-benefits claims failed; the Dadson Maina decision was distinguished as predicated on the Constitution, 2010. Total award: Kshs 310,951/- with costs to the Claimant. Judgment delivered on 21 May 2018 by Radido Stephen J.

Key legal issues

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01

Whether the summary dismissal was unfair

Holding

The dismissal was wrongful; the Claimant had lawful cause to be absent and was entitled to pay in lieu of notice

Reasoning

At the time of dismissal in 2006 dismissals were governed by common law, requiring notice. The Claimant applied for maternity leave on the day of a premature delivery, was hospitalised, and the rejection came a month later. Maternity and medical reasons constituted lawful cause for absence; alternatively she was entitled to convalescence after a surgical delivery. The Respondent did not appear to contest the other allegations, so the dismissal was wrongful and pay in lieu of one month's notice was due.

p. 2
02

Whether the Claimant's rights were violated

Holding

Yes - the denial of maternity leave, a statutory right in 2005, was a violation leading to the dismissal

Reasoning

Maternity leave was a statutory entitlement in 2005. The Claimant applied for it on the day of premature delivery but the request was denied, and that denial directly precipitated her summary dismissal. The Court held that breach of the statutory entitlement consequentially causing wrongful dismissal entitled the Claimant to a remedy, which it assessed at Kshs 300,000/- as damages given the reprehensibility of the Respondent's conduct.

p. 2
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Whether the Claimant was discriminated against

Holding

No - the discrimination claim failed for want of particulars and comparative evidence

Reasoning

The Claimant alleged discrimination but did not disclose its nature nor show that the Respondent had treated other women in her position differently. Without such material the Court could not find discrimination on account of gender or reproductive health, and the claim was rejected despite success on the maternity-leave violation.

p. 3
04

Whether contractual rights were breached

Holding

No - the Claimant was not a civil servant and proved no breach of her contract on remuneration

Reasoning

The Claimant anchored benefits claims on civil service circulars and the Dadson Maina decision, contending she was a civil servant. The Court held she was an employee of the Board of Governors, not the Public Service Commission, and the Dadson decision was predicated on the Constitution, 2010, long after she left service. She served under terms agreed with the Respondent and did not demonstrate breach as far as remuneration was concerned.

p. 3

Legal principles established

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  • At common law (before the Employment Act, 2007), an employer could dismiss for no cause, good cause or bad cause provided contractual notice was given, failing which pay in lieu of notice was payable.
  • Maternity or medical reasons constitute lawful cause for an employee's absence from work.
  • Denial of the statutory right to maternity leave which leads to dismissal is a violation entitling the employee to a remedy.

Court orders

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  1. 1.Pay in lieu of notice of Kshs 10,951/-
  2. 2.Damages of Kshs 300,000/-
  3. 3.Total award of Kshs 310,951/- to the Claimant
  4. 4.Claimant to have costs of the Cause

Authorities

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Legislation

  • Employment Act(now repealed) - maternity leave provisions; Employment Act, 2007 referenced as statutory underpinning of unfair termination

Cases cited (1)

  • Dadson Maina & 33 Ors v Board of Management, Nyeri Primary School
    (2017) eKLR
Jurisdiction invoked
First-instance employment cause transferred to the Employment and Labour Relations Court from the High Court (proceedings instituted in the High Court on 4 October 2006)

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, "Felistas Njeri Waweru v Chairman, Board of Governors, Kairi Secondary School [2018] KEELRC 1965 (KLR)", Case Analysis (2018). Cause No 1764 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1965/eng@2018-05-21

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