Rachael Githigia Macharia v B.O.M Ngangarithi Secondary School [2019] KEELRC 2030 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Constructive dismissal through demoting redeployment
The deployment to cooking duties from her secretarial/storekeeper position was demoralizing and discriminatory, amounting to constructive dismissal wholly attributable to the Respondent.
The Claimant, a qualified secretary who also served as storekeeper and lab assistant, was issued an unsigned contract for cook/storekeeper duties. She protested the deployment as unfair and her union termed it discriminatory. Rather than resolve the grievance, the Respondent locked her out when she declined to sign. The court found the demotion humiliating and discriminatory, making the resulting constructive dismissal entirely the Respondent's fault.
Procedural fairness under Section 41 of the Employment Act and maximum compensation
The dismissal was without notice and without any procedural fairness, warranting one month's notice pay and the maximum compensation of 12 months' gross salary.
The court found the Claimant was dismissed without notice, entitling her to one month's salary in lieu. On compensation, the court noted the manner of dismissal was so egregious that the maximum 12-month award was warranted, emphasizing that the Respondent offered no semblance of the fairness required under Section 41 of the Employment Act before terminating the employment relationship.
Burden of proof on ancillary claims (leave, maternity, overtime, gratuity, service pay)
All ancillary claims failed for want of proof: leave was taken, no maternity or overtime records were availed, the contract made no gratuity provision, and NSSF contributions barred service pay.
The court held the Claimant to her evidentiary burden on each head of claim. She went on leave as shown by her own evidence and was even compelled to take leave; no records supported maternity leave or overtime entitlements; her contract contained no gratuity clause; and since NSSF dues were paid on her behalf, service pay was not payable under the Employment Act regime.
Legal principles established
#- An unfair and discriminatory redeployment that leaves an employee no option but to leave constitutes constructive dismissal for which the employer is responsible
- Before dismissing an employee the employer must afford the fairness prescribed under Section 41 of the Employment Act; failure to do so justifies the maximum 12 months' compensation
Court orders
#- 1.One month's salary as notice – Kshs. 11,000/-
- 2.12 months' salary as compensation – Kshs. 132,000/-
- 3.Costs of the suit to the Claimant
- 4.Interest at court rates on the sums in (i) and (ii) from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules 2016 (Rule 21)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngusu v BOM, Kyome Girls Secodnary School (Cause 2560 of 2016) [2024] KEELRC 1146 (KLR)[2024] KEELRC 1146 (KLR)15 May 2024
Cite this brief
#Cite this brief
Caselaw, "Rachael Githigia Macharia v B.O.M Ngangarithi Secondary School [2019] KEELRC 2030 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2030/eng@2019-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.