Tracy Wangechi Mugambi v Windsor Golf Hotel and Country Club [2019] KEELRC 1969 (KLR)

The termination letter dated 18/1/2016 did not assign any reason for termination. The Respondent's asserted reasons of absconding duty and poor performance were not supported: the last warning was dated 25/3/2014 with no repetition of the breach, the absconding claim was contradicted by the Petitioner's maternity leave, and absconding was not raised in the termination letter. The only plausible reason was the pregnancy and delivery.

Section 41 requires an employer, before terminating on grounds of misconduct, poor performance or incapacity, to explain the reasons to the employee and hear and consider representations, with a fellow employee or union representative present. The Petitioner was never served with a notice to show cause nor given any hearing, so the dismissal was procedurally unfair irrespective of the merits alleged by the Respondent.

Article 27(4) expressly prohibits discrimination on the ground of pregnancy. The Petitioner proceeded on leave at the Respondent's direction when pregnant, delivered in July 2015, and was terminated about two months after resuming from maternity leave. No valid reason or procedural compliance was shown, leaving pregnancy as the only plausible reason, as found in the similar case of Claudine Wanjiku Mboce v Exon Investments Limited.

Section 45(2) requires the employer to prove both a valid and fair reason and a fair procedure. Having found neither a valid reason nor due process, the court concluded the termination was unfair under Section 45(2) and exercised its discretion under Section 49 to award the equivalent of twelve months' gross salary together with notice pay and gratuity.