Lu Yini v Avic Intl. Beijing (E.A) Co.Ltd & another [2019] KEELRC 2093 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing a worker for pregnancy is unlawful and awarded her over USD 18,750 plus Kshs. 375,000 in damages.
What this practically means
#Executive summary
#Key legal issues
#Claimant's net monthly remuneration after probation
As at termination the claimant's net monthly remuneration was USD 1,500.00 plus Kshs.30,000.00
Section 9(2) of the Employment Act obliged the employer to set out the contract terms in writing; section 10(7) placed the burden of proving or disproving the term on the respondents, who failed to discharge it. The 2nd respondent did not testify about the salary and RW2 offered no useful resolution, so on a balance of probability the claimed increment was proved.
Whether termination was unfair or unlawful
The termination was unfair and unlawful, having been effected on account of pregnancy, contrary to sections 46(a) and 5(3) of the Employment Act and Articles 27(4), 27(5) and 41 of the Constitution
The 2nd respondent did not testify, so the claimant's unchallenged account stood: she was verbally dismissed on 24.07.2017 after refusing to disclose her pregnancy. No notice and hearing under section 41 was invoked. Pregnancy is not a fair reason for dismissal under section 46(a); the discrimination violated section 5(3) of the Act and Articles 27 and 41 of the Constitution.
Compensation under section 49
Ten months' salary awarded in compensation, being Kshs.300,000.00 plus USD 15,000.00
The court considered the claimant's desire to continue in employment, her service of slightly over a year, and the constitutional violations; the appraisal incident of 21.04.2017 was regarded as, at most, a remote contributing factor.
Counterclaim for the laptop
Counterclaim failed
The claimant did not take the laptop, and its value was neither pleaded nor established, so the alternative prayer for payment of value was not properly pleaded.
Legal principles established
#- A female employee's pregnancy or any reason connected with her pregnancy does not constitute a fair reason for dismissal
- Under section 10(7) of the Employment Act the burden of proving a term of the contract of service rests with the employer
- Termination for misconduct or poor performance requires the procedure of notice and hearing under section 41 of the Employment Act
Court orders
#- 1.Declaration that the termination of the claimant's contract of service on account of pregnancy and reasons related to the pregnancy was unlawful and unfair
- 2.The respondent to pay the claimant USD 18,750.00 and Kshs.375,000.00 by 01.05.2019 failing interest at court rates from the date of judgment till full payment
- 3.Dismissal of the counterclaim with costs in favour of the claimant
- 4.The respondent to pay the claimant's costs of the suit
- 5.Consent order that the claimant was at liberty to collect her personal belongings from the 1st respondent's premises, and award of a certificate of service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; Employment Act, 2007 and Articles 27 and 41 of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lu Yini v Avic Intl. Beijing (E.A) Co.Ltd & another [2019] KEELRC 2093 (KLR)", Case Analysis (2019). Employment and Labour Relations Court Claim (memorandum of claim filed 30.10.2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2093/eng@2019-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.