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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 818 (KLR)

Kenya Union of Sugar Plantation & Allied Worekrs v West Kenya Sugar Company Limited [2019] KEELRC 818 (KLR)

Employment and Labour Relations Court
18 September 2019
3,029 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 woman Kshs 3 million after finding she was fired because she was pregnant, and her employer could not prove otherwise.

What this practically means

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Executive summary

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The claimant union sued on behalf of grievant Brenda Otunga Wapopa, formerly employed by the respondent from 2011, initially as a casual weighbridge clerk, then permanently in the insurance office from September 2013. After a temporary deployment to the technical office, her return to the insurance office was rejected by supervisor Margaret Osogo in May 2014 on the basis that the office had moved to a higher standard the grievant could not cope with, that she was due for maternity leave, and that 'a vigorous active man' was needed. A show cause letter alleging poor performance followed, and after a disciplinary hearing held the morning after a 4 p.m. notice - which proceeded in her absence despite her request for more time - her employment was summarily terminated on 20 June 2014 for poor work performance. The court framed two issues: whether the termination was for valid reason and followed fair procedure, and whether the grievant was entitled to relief. It found the poor-performance allegations pretextual and false, held that the grievant was discriminated against on grounds of pregnancy and gender contrary to section 5(3) of the Employment Act and Articles 28 and 41 of the Constitution, and that the respondent failed to discharge its burden of disproving discrimination. No appraisal report supported the allegations, and the respondent's witness had no personal knowledge of the events. Judgment was entered for the claimant: Kshs. 3,000,000 general damages for discrimination, Kshs. 27,387 in lieu of notice, interest at court rates, and costs of the suit. Reinstatement, though pleaded, was not granted as it was untenable after more than three years had elapsed.

Key legal issues

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01

Whether termination was for a valid reason and followed fair procedure

Holding

Termination was unlawful: the allegations of poor performance were pretextual, prompted by the supervisor's rejection of the grievant because of her pregnancy; no appraisal evidence was produced; and the disciplinary hearing proceeded in the grievant's absence despite her request for an adjournment.

Reasoning

The court found the letter by Mrs Osogo rejecting the grievant's return expressly cited her pregnancy and impending maternity leave and a preference for 'a strong man'. No appraisal report was produced to substantiate poor performance. The show cause allegations had never been raised before. The hearing notice of 4 p.m. on 19 June for a 10 a.m. hearing on 20 June was too short, and the grievant's request for more time was ignored; the hearing and termination proceeded the same day. The respondent, whose witness had no personal knowledge, failed to rebut the credible testimony of CW2 or call Mrs Osogo.

p. 3
02

Whether the grievant was discriminated against on grounds of pregnancy and gender

Holding

Yes - discrimination on grounds of pregnancy and gender was proved on a balance of probabilities, contrary to section 5(3) of the Employment Act and Articles 41 and 28 of the Constitution.

Reasoning

Section 5(3) of the Employment Act prohibits discrimination on grounds including pregnancy; Article 41 guarantees fair labour practices and Article 28 protects dignity. Under section 5(6) read with section 56, the employer bears the burden of disproving discrimination. The respondent 'dismally failed' to discharge that burden; the internal correspondence itself disclosed the discriminatory motive. General damages were awarded following the approach in GMV v Bank of Africa.

p. 4
03

Entitlement to remedies

Holding

Reinstatement was unavailable due to lapse of time; the court awarded Kshs. 3,000,000 general damages for discriminatory summary dismissal plus one month's salary in lieu of notice, interest and costs.

Reasoning

Although reinstatement was available in principle, more than three years had elapsed making it untenable. Guided by GMV v Bank of Africa Kenya Ltd, where Rika J. awarded Kshs. 3,000,000 composite general damages for pregnancy-based termination, the court awarded the same sum. One month's salary in lieu of notice (Kshs. 27,387) was added since the dismissal was with immediate effect.

p. 4

Legal principles established

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  • An employer bears the burden of proving that discrimination did not take place where a contravention of section 5(3) of the Employment Act is alleged.
  • Termination of an expectant employee on grounds connected to her pregnancy and impending maternity leave constitutes unlawful discrimination and unfair labour practice.

Court orders

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  1. 1.General damages for discrimination on the basis of pregnancy resulting in summary dismissal of CW2 in the sum of Kshs. 3,000,000.
  2. 2.One month salary in lieu of notice Kshs. 27,387.
  3. 3.Interest at court rates from date of judgment till payment in full.
  4. 4.Costs of the suit.
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007; Article 41 Constitution of Kenya 2010)

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 Sugar Plantation & Allied Worekrs v West Kenya Sugar Company Limited [2019] KEELRC 818 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/818/eng@2019-09-18

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