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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 1113 (KLR)

Kenya Hotels & Allied Workers Union v Habesha Ethiopian Restaurant [2019] KEELRC 1113 (KLR)

Employment and Labour Relations Court
15 July 2019
962 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant union sued on behalf of two grievants, Shadrack Apong'o (now deceased) and Phoebe A. Odhiambo, but proceeded only with the claim for the latter, having abandoned the deceased's claim for lack of instructions from his next of kin. Phoebe Aluoch Odhiambo was employed by the respondent on 1st September 2012 as a waiter on a starting salary of Kshs. 4,000 and was verbally sent home on 3rd April 2013 after the Manager, George Obina, told her she could not continue working while pregnant. She claimed notice pay, prorata leave, pay for public holidays worked, arrear salary for September 2012 to March 2013 totaling Kshs. 51,378, a certificate of service, and (per the amended memorandum of claim filed 26th March 2018) compensation for unlawful dismissal. The suit was undefended; despite service of both the original and amended claims, the respondent never filed a response. The court found the terminal benefits proved on a balance of probabilities and entered judgment for Kshs. 51,378. It further held that dismissal on account of pregnancy was an unfair labour practice violating Section 5 of the Employment Act, 2007 read with Article 41 of the Constitution, and Sections 41, 43, 45 and 46 of the Act. Considering aggravating circumstances including victimization, denial of maternity leave, non-issuance of a certificate of service and underpayment, the court awarded six months' salary (Kshs. 55,596) as compensation. Total award: Kshs. 106,974 with interest, certificate of service within 30 days, and costs of the suit.

Key legal issues

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01

Whether termination on grounds of pregnancy constituted unlawful and unfair dismissal

Holding

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

Reasoning

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).

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02

Quantum of compensation for unfair summary dismissal

Holding

Equivalent of six months' salary, Kshs. 55,596, awarded having regard to aggravating circumstances

Reasoning

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.

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Terminal dues in an undefended suit

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Judgment entered for the grievant in terminal benefits of Kshs. 51,378
  2. 2.Equivalent of six months' salary, Kshs. 55,596, awarded as compensation for unlawful summary dismissal
  3. 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. 4.Respondent to provide certificate of service within 30 days
  5. 5.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSections 41, 43, 45, 46, 49(1)(c) and (4), 5
  • Constitution of KenyaArticle 41
  • General Wage OrderMinimum wage for a waiter (Kshs. 9,266 inclusive of house allowance)

Cases cited (1)

  • Camu vs Bank of Africa Kenya Limited
    (2013) eKLR
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

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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 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.