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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 664 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Generation Electric Allied Limited [2019] KEELRC 664 (KLR)

Employment and Labour Relations Court
17 October 2019
NMNzioki wa Makau
1,607 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who transferred an employee to Eldoret straight after maternity leave was ordered to pay her nearly Kshs. 486,000 for constructive dismissal.

What this practically means

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Executive summary

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The Claimant union sued on behalf of its member, the Grievant, who was employed verbally in October 2012 as an Mpesa cashier. She proceeded on three months' maternity leave in January 2017. On the eve of her resumption she was informed she would be transferred from Embu to either Machakos or Eldoret; her request for deferment, made while nursing an infant, was refused, and a transfer letter to Eldoret issued on 9th May 2017. She resigned rather than report. After an unsuccessful conciliation under the Labour Relations Act, the claim came to court. The Grievant testified; the Respondent and its counsel failed to attend the hearing, and its application to re-open the case was never heard. The court found that Section 29(2) of the Employment Act entitled the Grievant to return to her job or a reasonably suitable one on terms not less favourable, and that the failure to accord her those options rendered the transfer without proper foundation despite the employer's general authority to transfer staff. Her resignation was held to be constructive dismissal, the employer having created an environment that forced her to resign. On quantum, the court held that underpayment is a continuing injury recoverable within 12 months under Section 90 of the Employment Act, so only the final year was compensable, yielding Kshs. 176,845.20. Judgment was entered for the Grievant for that sum, maximum compensation for unlawful dismissal of Kshs. 308,845.20, interest at court rates and costs of the suit. Heads of claim for house allowance, public holidays and leave were not included in the final award.

Key legal issues

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01

Whether transferring an employee immediately upon resumption from maternity leave without the Section 29(2) options was lawful

Holding

The transfer to Eldoret lacked proper foundation as the Respondent failed to accord the Grievant the options required by Section 29(2) of the Employment Act

Reasoning

Section 29(2) entitles a female employee on expiry of maternity leave to return to the same job or a reasonably suitable job on terms not less favourable. The Respondent, though empowered to transfer staff, did not offer these options. Transferring her while asserting she was a mere casual worker was inconsistent and callous, rendering the transfer without foundation and constructive dismissal followed.

p. 2
02

Whether the Grievant's resignation constituted constructive dismissal

Holding

Yes; the resignation was not truly voluntary and amounted to a termination by constructive dismissal

Reasoning

The court adopted the classic definition of constructive dismissal: resignation resulting from an employer creating a hostile work environment. By creating an environment that forced the Grievant to resign while still nursing an infant, the Respondent constructively dismissed her, entitling her to compensation for unlawful dismissal.

p. 2
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Extent of recoverable underpayment claims

Holding

Only the final year of employment was recoverable, being a continuing injury subject to the 12-month rule in Section 90 of the Employment Act

Reasoning

The Grievant did not raise underpayment during her employment, waiving redress for previous years. Underpayment is a continuing injury for which redress must be sought within 12 months. She was awarded the difference between her final-year salary of Kshs. 11,000 and the statutory minimum of Kshs. 25,737.10 for Embu Municipality, i.e. Kshs. 176,845.20.

p. 2

Legal principles established

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  • On expiry of maternity leave a female employee has the right to return to her former job or a reasonably suitable job on terms not less favourable, and a transfer issued without according those options lacks proper foundation
  • A resignation induced by an employer's hostile conduct amounts to constructive dismissal
  • Underpayment is a continuing injury recoverable only within 12 months; claims for earlier years are waived if not raised during employment

Court orders

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  1. 1.Kshs. 176,845.20 as underpayment for the final year of service
  2. 2.Maximum compensation for unlawful dismissal of Kshs. 308,845.20
  3. 3.Interest on the sums awarded at court rates from the date of judgment until payment in full
  4. 4.Costs of the suit

Authorities

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Legislation

  • Employment ActSection 29(1) and (2)
  • Employment ActSection 90
  • Labour Relations Act, 2007Section 62
  • Labour Relations Act, 2007Section 69
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court; dispute referred after conciliation under Sections 62 and 69 of the Labour Relations Act, 2007

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, "Kenya Union of Commercial, Food and Allied Workers v Generation Electric Allied Limited [2019] KEELRC 664 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/664/eng@2019-10-17

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