Rose Wangari Mwangi v Mount Kenya University [2020] KEELRC 238 (KLR)

The Claimant's approved maternity leave was to run from 19th October 2015 to 18th January 2016, but the Respondent unilaterally reviewed its commencement to 29th August 2015 with a reporting date of 30th November 2015 without notifying her. However, the law permits extension of maternity leave only by mutual agreement or production of a medical certificate. The Claimant produced no sick leave application or medical certificate until February 2016, and then only an undated letter. Internal memos showed she did not attend work or answer calls. Her failure to explain or obtain authority for her absence between 1st and 14th December 2015 justified the stopping of her salary.

Applying the contractual test in Coca Cola v Maria Kagai Ligaga, the employee must show the employer's conduct amounted to a repudiatory breach. Here the Respondent stopped the salary because the Claimant failed to resume duty when its records showed her leave had lapsed. Although the Respondent was at fault in not notifying the Claimant of the changed maternity commencement and reporting dates, and allowed her back to work without reinstating her salary, the Claimant also failed to seek clarification or justify her absence. Both parties contributed to the impasse, so the employer's conduct did not amount to constructive dismissal.

Having worked from 14th December 2015, the Claimant earned salary for that period, awarded at Kshs.54,000/-. The Respondent did not prove that gratuity was paid for the contract that ended on 1st May 2015, so Kshs.18,720/- was awarded as prayed. Because constructive dismissal was not proved, the claims for 12 months' compensation under section 49(4) of the Employment Act and one month's salary in lieu of notice were dismissed.