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ELRCPartially AllowedCase No 23 of 2017· [2019] KEELRC 1171 (KLR)

Eucabeth Amondi v Ondieki John Paul & 6 others [2019] KEELRC 1171 (KLR)

Employment and Labour Relations Court
11 July 2019
MNMathews N. Nduma
2,456 words in judgment
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The bottom line

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A Kenyan hotel was ordered to pay Kshs. 1 million for firing a worker because she was pregnant and on maternity leave.

What this practically means

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Executive summary

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The claimant, employed as a receptionist in June 2014 and promoted to Acting Manager in April 2015, sued the six named directors trading as The Stephens Hotel and The Stephens Hotel Limited. She went on three months' maternity leave from 28th December 2015 and resumed on 28th March 2016 to find a new manager, Teresa Aluoch, had replaced her. She was assigned no duties and then reduced to cleaning rooms and utensils before being handed a letter of summary dismissal on 3rd May 2016 with effect from 4th May 2016, paid Kshs. 20,000 in lieu of two months' notice. The respondents alleged she had been given a show cause letter for theft of Kshs. 23,500 and absconded. The court found the 7th respondent, a limited liability company, was the proper respondent and struck off the 1st to 6th respondents. It held the claimant did not abscond but was dismissed without valid reason or any hearing, the show cause letter being an afterthought, and that she was replaced because she was pregnant and had given birth - discrimination contrary to Section 5 of the Employment Act, Article 41 and Article 27(4) of the Constitution. Applying GMV v Bank of Africa and the CUEA case, the court awarded Kshs. 1 Million as global damages for discrimination and unlawful and unfair dismissal, with interest at court rates from the date of judgment and costs of the suit. Claims for notice pay, underpayment, gratuity and leave pay were dismissed for want of proof.

Key legal issues

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01

Whether the claimant absconded or was summarily dismissed

Holding

The claimant was summarily dismissed, not absconding; the show cause letter for theft was an afterthought.

Reasoning

The undisputed evidence showed the claimant was replaced while on maternity leave and reduced to cleaning rooms, then dismissed with payment of Kshs. 20,000 in lieu of two months' notice. RW1's evidence was inconsistent with that undisputed payment and thus incredible. The demand letter of 4th May 2016 referred to no charges and went unanswered, confirming the show cause letter was introduced in court as an afterthought.

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02

Valid reason and fair procedure

Holding

Dismissal was for no valid reason and without any hearing, violating the Employment Act; the dismissal was discriminatory on grounds of pregnancy and birth.

Reasoning

The claimant was replaced while on maternity leave and, upon resuming, was demoted to cleaning rooms in a ploy to make her leave. No hearing or show cause preceded the dismissal. The manager's remark that there was 'no space for lactating mothers' evidenced discrimination prohibited by Section 5 of the Employment Act, Article 41 and Article 27(4) of the Constitution.

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Reliefs

Holding

Kshs. 1 Million awarded as global damages for discrimination and unlawful dismissal; other heads dismissed for want of proof.

Reasoning

Following GMV v Bank of Africa and CUEA (Kshs. 3 Million and 5 Million awards), the court awarded Kshs. 1 Million, considering it a global award covering discrimination, unfair termination and the aggravating circumstances including degrading demotion, false theft accusations and the claimant's young baby. Notice pay, underpayment, gratuity and leave pay failed for lack of proof.

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Legal principles established

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  • Summary dismissal of an employee on grounds of pregnancy and giving birth constitutes unlawful and unfair discrimination, an unfair labour practice and a violation of the right against discrimination.
  • Dismissal without a hearing violates Sections 36, 41, 43, 45 and 46 of the Employment Act, 2007.
  • General damages for discrimination in dismissal are not necessarily separate from statutory compensation and may be awarded as a global award.

Court orders

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  1. 1.The 1st to 6th respondents struck off as respondents in the suit.
  2. 2.Global damages for discrimination on grounds of pregnancy and birth and unlawful and unfair loss of employment in the sum of Kshs. 1 Million (1,000,000).
  3. 3.Interest at court rates from date of judgment till payment in full.
  4. 4.Costs of the suit to the claimant.

Authorities

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Legislation

  • Employment ActSections 5, 36, 41, 43, 45, 46, 49(1)(c) and (4)
  • Constitution of Kenya 2010Article 27(4); Article 41

Cases cited (1)

  • GMV vs Bank of Africa (K) Ltd
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007; Article 41 of the Constitution cited in judgment)

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, "Eucabeth Amondi v Ondieki John Paul & 6 others [2019] KEELRC 1171 (KLR)", Case Analysis (2019). Case No 23 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1171/eng@2019-07-11

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