Judy Wacera Njau v Belladonna Pharmacy Ltd [2019] KEELRC 1476 (KLR)
The bottom line
#A Kenyan court found a pharmacy fired a pregnant employee on probation under the false excuse of poor performance, awarding her Kshs. 1,000,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's probationary employment was unlawful and discriminatory
Although the employer was free to terminate the probationary contract without Section 41 procedure, the reason advanced (performance) was pretextual and the real reason was the Claimant's pregnancy, which is discriminatory
The employer asserted poor performance but produced no appraisal report and the court could not identify the shortcomings. Under Section 5(6) of the Employment Act, the employer bears the burden of proving discrimination did not occur. Having failed to discharge this burden, the asserted performance reason was held to be a mask for pregnancy-based discrimination contrary to Article 27 and Section 5 of the Employment Act.
Whether the termination was substantively and procedurally unfair
Having found discrimination, the court also found the termination substantively and procedurally unfair
The finding of unfair termination flowed from the finding of discrimination. The court noted that although the Claimant suffered discrimination, she had served barely two months under the contract and had found alternative employment, which informed the quantum of the award.
What remedies the Claimant was entitled to
A global composite sum of Kshs. 1,000,000 awarded in place of the itemised claims; house allowance claim disallowed as salary was gross
Guided by proportionality and fairness, the court declined the itemised 12 months' salary claim and general damages and instead awarded a composite global sum of Kshs. 1,000,000, with interest at court rates from judgment date and costs to the Claimant.
Legal principles established
#- Termination of a probationary contract is exempt from Section 41 procedural fairness requirements under Section 42(1) of the Employment Act
- The flexibility in probationary termination cannot be used by an employer to achieve a collateral or discriminatory purpose
- Once an employee establishes a prima facie case of discrimination, the burden shifts to the employer to prove a clear, specific and non-discriminatory reason; failure results in a finding of pretext
- A performance appraisal must be documented and must involve the active participation of the appraisee
Court orders
#- 1.Judgment entered in favour of the Claimant and against the Respondent in the sum of Kshs. 1,000,000 as composite damages
- 2.The award to attract interest at court rates from the date of delivery of judgment until payment in full
- 3.The Claimant awarded the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judy Wacera Njau v Belladonna Pharmacy Ltd [2019] KEELRC 1476 (KLR)", Case Analysis (2019). Memorandum of Claim dated 19th November 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1476/eng@2019-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.