Kenya Hotels & Allied Workers Union v Habesha Ethiopian Restaurant [2019] KEELRC 1113 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether termination on grounds of pregnancy constituted unlawful and unfair dismissal
Yes - the respondent unlawfully dismissed the grievant on account of her pregnancy, an unfair labour practice and affront to human dignity, with no valid reason and in violation of Sections 41, 43, 45 and 46 of the Employment Act
The grievant's uncontroverted oath evidence showed she was told she could not work while pregnant and was verbally sent home without terminal benefits. The court found the respondent violated Sections 41, 43, 45 and 46 of the Employment Act and Section 5 as read with Article 41 of the Constitution, entitling her to compensation under Section 49(1)(c) and (4).
Quantum of compensation for unfair summary dismissal
Equivalent of six months' salary, Kshs. 55,596, awarded having regard to aggravating circumstances
The court took into account the short service period of about one year, that she was a good employee who did not contribute to the dismissal, victimization on account of pregnancy, denial of maternity leave, non-issue of a certificate of service and underpayment, and considered Camu vs Bank of Africa Kenya Limited where Kshs. 3 million was awarded.
Terminal dues in an undefended suit
Claims for notice pay, prorata leave, public holidays worked and arrear salary proved on a balance of probabilities and judgment entered for Kshs. 51,378
The respondent did not respond to the original or amended memorandum of claim despite service. In the undefended suit, the court found the claims proved on a balance of probabilities and entered judgment in the sum claimed in the amended memorandum of claim.
Legal principles established
#- Dismissal of an employee on account of pregnancy is unfair labour practice contrary to Section 5 of the Employment Act, 2007 as read with Article 41 of the Constitution and violates the employee's human dignity
Court orders
#- 1.Judgment entered for the grievant in terminal benefits of Kshs. 51,378
- 2.Equivalent of six months' salary, Kshs. 55,596, awarded as compensation for unlawful summary dismissal
- 3.Total award of Kshs. 106,974 with interest at court rates from date of judgment on the compensation and from date of filing suit on the terminal benefits
- 4.Respondent to provide certificate of service within 30 days
- 5.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act 2007, ss. 41, 43, 45, 46, 49); Article 41 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels & Allied Workers Union v Habesha Ethiopian Restaurant [2019] KEELRC 1113 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1113/eng@2019-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.