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ELRCPartially AllowedCause No 445 of 2014· [2020] KEELRC 958 (KLR)

Lucy Wambui Waweru v Methodist Church in Kenya Registered Trustees & Another [2020] KEELRC 958 (KLR)

Employment and Labour Relations Court
29 May 2020
2,026 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a church unfairly fired its youth pastor because her disciplinary hearing wasn't properly convened, awarding five months' salary.

What this practically means

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Executive summary

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The Claimant, a PCEA minister, was engaged by Lavington United Church as Associate Youth Pastor in 2009 and later ordained and posted back to the Church. Following a breakdown in relations, she was invited to meetings on 6 and 10 April 2013 to answer for her conduct and her services were terminated on 11 April 2013 for insubordination, derogatory language and related conduct, with salary in lieu of notice offered. She sued for unfair and malicious termination and breach of contract. The Court found that under clause 8 of the 1959 Trust Deed the Leaders Meeting, properly convened with PCEA and Anglican Church representatives, served as the Court of Discipline. Since those representatives were neither invited nor present at the meeting of 10 April 2013, the forum was not validly constituted and the termination decision was made by an entity without such power. The Court further held that the termination breached sections 35(1)(c) and 41 of the Employment Act because the Claimant was not given a show-cause notice, adequate time, or an opportunity to be accompanied. The termination was declared unfair and compensation of Kshs 354,000/- (five months' gross salary) was awarded given her roughly three years of service. However, the claim for Kshs 36,000/- airtime loss failed because the allowance was facilitative and not expressly claimable after separation, and the discriminatory pay claim failed for want of comparator evidence. The Claimant, having failed to file submissions within the extended time, was denied costs.

Key legal issues

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01

Whether the Leaders Meeting was validly constituted as a Court of Discipline

Holding

The meeting of 10 April 2013 was not validly constituted because the PCEA and Anglican Church representatives were not invited or present; the termination decision was made by an entity without such power under the Trust Deed

Reasoning

Clause 8 of the Trust Deed designates the Leaders Meeting, properly convened with representatives of the PCEA and the Anglican Church, as the Court of Discipline. The Respondents' own witness confirmed the PCEA representative was not invited to the meeting at which the Claimant's conduct was considered. Without those representatives the forum was not validly constituted, so the termination decision lacked a proper disciplinary foundation.

p. 3
02

Whether the termination met the statutory procedural requirements

Holding

The termination did not meet the minimum statutory threshold; it was procedurally unfair

Reasoning

Sections 35(1)(c) and 41 of the Employment Act require written notice and an opportunity to be heard. The Claimant received no show-cause notice setting out the allegations arising from the 6 April 2013 meeting, the invitation gave insufficient time to prepare a defence or bring a colleague, and her sponsoring Church's representative was excluded. The process failed both the Respondents' internal standards and statutory minimums despite payment in lieu of notice.

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03

Quantum of compensation for unfair termination

Holding

Five months' gross salary (Kshs 354,000/-) awarded considering about 3 years of service

Reasoning

The Claimant served approximately 3 years. Taking length of service into account, the Court considered the equivalent of 5 months' gross salary of Kshs 70,800/- fair and appropriate compensation for the unfair termination.

p. 3

Legal principles established

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  • A disciplinary forum under a trust deed must be properly constituted as prescribed; a decision made by a body not validly constituted is made by an entity without such power
  • Sections 35(1)(c) and 41 of the Employment Act require written notice of termination and an opportunity to be heard before termination
  • A claimant asserting discriminatory pay must prove a comparator doing equal work or work of equal value and conditions giving rise to a presumption of unequal pay

Court orders

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  1. 1.Declaration that the termination of the Claimant's service was unfair
  2. 2.Award of compensation equivalent to 5 months gross salary of Kshs 354,000/-
  3. 3.Declined relief on airtime loss claim
  4. 4.Dismissal of the underpayment/discriminatory pay claim
  5. 5.Denial of costs to the Claimant for failure to file submissions

Authorities

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Legislation

  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Section 41
  • Lavington United Church Trust DeedClause 8
Jurisdiction invoked
Employment and labour relations jurisdiction over the claim for unfair termination and breach of contract (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lucy Wambui Waweru v Methodist Church in Kenya Registered Trustees & Another [2020] KEELRC 958 (KLR)", Case Analysis (2020). Cause No 445 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/958/eng@2020-05-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.