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ELRCPartially AllowedCause No 866 of 2016· [2019] KEELRC 731 (KLR)

Zipporah Machocho v Badala Nursery & Primary School [2019] KEELRC 731 (KLR)

Employment and Labour Relations Court
3 October 2019
LNLinnet Ndolo
2,247 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 ruled a school unfairly fired a sick employee and discriminated against her, awarding her Kshs. 469,082.

What this practically means

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Executive summary

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The Claimant, a subordinate staff member of the Respondent school employed on 6th September 2003, alleged that her employment terminated with effect from 30th April 2015 was due to an occupational skin disease (chronic urticaria) caused by workplace chemicals, and claimed compensation, overtime, leave allowance, general damages for occupational disease and discrimination, special damages, house allowance, a certificate of service and costs. The Respondent admitted the employment but maintained that termination was for misconduct, persistent lateness and absenteeism, denied any occupational disease, and offered Kshs. 65,208 in full settlement. The Court framed four issues: lawfulness and fairness of termination, occupational disease, discrimination, and remedies. It held the termination substantively and procedurally unfair: the termination letter disclosed no reason, the warning letters were not linked to the reason for dismissal, and no hearing was accorded despite the admitted medical condition. The Head Teacher's admission under cross-examination that she moved the Claimant because she was sick, to prevent customers running away, grounded a finding of discrimination under Article 27 of the Constitution. However, the occupational disease claim failed for want of a causal link between the work and the illness. The Court awarded Kshs. 469,082, comprising 12 months' compensation computed on a monthly salary of Kshs. 11,868 (basic salary plus 15% house allowance), Kshs. 100,000 for discrimination, house allowance for 139 months, 24 days' leave pay and Kshs. 2,000 for a medical report, with interest, a certificate of service and costs. The overtime claim was dismissed.

Key legal issues

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01

Whether the termination was substantively and procedurally fair

Holding

Termination was substantively and procedurally unfair; the letter gave no reason, the warning letters were not linked to the reason for dismissal, and no opportunity to be heard was given despite the Claimant's known medical condition

Reasoning

The termination letter did not disclose any reason for dismissal. The Head Teacher's evidence linked the transfer to the Claimant's illness, and lateness allegations were not proved at the shop floor. Given the admitted medical condition, the Respondent was obliged to show support towards recovery and offer a hearing, which it did not do. The Court found the Head Teacher's conduct callous and held the termination unfair, entitling the Claimant to compensation.

p. 3
02

Whether the Claimant proved an occupational disease

Holding

No; no causal link between the work and 'chronic urticaria' was established

Reasoning

Both doctors diagnosed chronic urticaria, but the issue was causation. The Claimant did not identify any particular chemical to which she was exposed that caused the condition, and none of the medical officers who treated her recommended withdrawal from exposure. By the time the experts saw her she had fully recovered with no residual disability. The claim on occupational disease therefore failed.

p. 3
03

Whether the Claimant was discriminated against on account of her health status

Holding

Yes; the Head Teacher's admission that she moved the Claimant because she was sick, to prevent customers running away, established discrimination under Article 27

Reasoning

Article 27 of the Constitution outlaws discrimination on the ground of health status. The Head Teacher conceded under cross-examination that she moved the Claimant because she was sick and to prevent customers from running away from the school. The Court held this admission confirmed discrimination on account of the Claimant's health condition and awarded damages of Kshs. 100,000.

p. 4
04

House allowance where the payslip showed basic salary without house allowance

Holding

House allowance awarded at 15% of basic salary; monthly salary reckoned at Kshs. 11,868

Reasoning

Section 31(1) and (2) of the Employment Act obliges the employer to provide reasonable housing or pay a sum as rent. The Claimant's March 2015 payslip filed by the Respondent showed a basic salary without house allowance, so the Court awarded house allowance at 15% of basic salary and adopted the resultant figure for tabulating the claim, including the 12 months' compensation award.

p. 4

Legal principles established

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  • An employer who terminates employment on account of illness must show support to the employee towards recovery and, before terminating, subject the employee to a specific medical examination on ability to resume work
  • A claimant alleging occupational disease must prove a causal link between the employer's negligence and the injury on a balance of probability; injury per se is not sufficient
  • Notice pay and leave pay are mutually exclusive employee rights and an employer cannot trade off one for the other

Court orders

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  1. 1.Judgment entered in favour of the Claimant as follows: 12 months' salary in compensation Kshs. 142,416; damages for discrimination Kshs. 100,000; house allowance for 139 months Kshs. 215,172; 24 days' leave pay Kshs. 9,494; medical report Kshs. 2,000 - total Kshs. 469,082
  2. 2.The judgment sum to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant is entitled to a certificate of service
  4. 4.The Claimant is awarded the costs of the case

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27
  • Employment ActSection 31(1) and (2)

Cases cited (2)

  • Kennedy Nyagucha Omanga v Bob Morgan Services Limited
    Cause No 1983 of 2011
  • Statpack Industries v James Munyao
    [2005] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (court not expressly cited in the judgment); claim brought under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Zipporah Machocho v Badala Nursery & Primary School [2019] KEELRC 731 (KLR)", Case Analysis (2019). Cause No 866 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/731/eng@2019-10-03

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