Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 118 of 2016· [2020] KEELRC 1885 (KLR)

Sitawa v We Effect (Formerly Sweedish Co-operative Centre) & another (Cause 118 of 2016) [2020] KEELRC 1885 (KLR)

Employment and Labour Relations Court
8 January 2020
BOByram Ongaya
4,735 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that ignoring an employee's genuine grievances can make a dismissal unfair, even where a valid firing reason exists.

What this practically means

#

Executive summary

#
The claimant, a Programme Assistant, sued the 1st respondent (a Swedish development corporation) and the 2nd respondent (a Swedish charitable trust) alleging pregnancy and racial discrimination, unfair termination, underpayment and various monetary reliefs. The court found that for 01.02.2013 to 04.01.2016 the claimant was employed by the 1st respondent but deployed to the 2nd respondent, which assigned duties, supervised her and could terminate her engagement; both were joint employers under section 2 of the Employment Act. On pregnancy discrimination, the court held the exchanges between the claimant and her supervisor were genuine consultations about sick leave and maternity leave, with no evidence of discrimination, and the termination long postdated the pregnancy with no chain of causation. Racial discrimination failed for want of evidence and a comparator, the claimant being bound by her agreed contractual salary. On termination, the court found one valid reason (attending a Strathmore University training during working hours without permission) under section 43, and that due process under sections 41 and 45 was accorded; but termination founded partly on well-founded, unresolved grievances was unlawful and unfair to that extent, contrary to Article 41(1) and the principle in Grace Gacheri Muriithi v Kenya Literature Bureau. Applying section 49, the court awarded 6 months' compensation (ksh 564,000 less PAYE), with interest at court rates if unpaid by 01.03.2020. Most other prayers were declined; the certificate of service had been issued, notice pay was made, and service pay was barred by NSSF membership. The respondents were ordered jointly or severally to pay 50% of the claimant's costs.

Key legal issues

#
01

Joint employment

Holding

Both respondents were joint employers of the claimant

Reasoning

The claimant signed contracts with the 1st respondent but the 2nd respondent assigned her duties, supervised her and could terminate her engagement. Each fitted the statutory definition of 'employer' under section 2 of the Employment Act, 2007, so liability is joint and several.

p. 3
02

Discrimination on account of pregnancy

Holding

Not established

Reasoning

The correspondence showed genuine consultations on handling the claimant's sick leave, annual leave and maternity leave. The suggestion to refund uncovered days was abandoned. Removal of her name from the website was not shown to be actuated by pregnancy, and the termination came long after the pregnancy with no chain of causation.

p. 5
03

Discrimination on account of race

Holding

Not established

Reasoning

There was no evidence the claimant was not evaluated because of her race, no evidence others were rewarded on racial grounds, she was bound by her agreed contract salaries, and there was no comparator to establish underpayment on racial grounds.

p. 6
04

Fairness of termination

Holding

Partially unfair: attending training without permission was a valid reason, but terminating partly for unresolved valid grievances was unfair

Reasoning

Section 43 reason of unauthorised training was established, and due process under sections 41 and 45 was accorded. However, grievances such as applying private money for tasks were well-founded but unresolved, and punishing the employee for them was unfair, attracting 6 months' compensation under section 49.

p. 7

Legal principles established

#
  • It is unfair labour practice for an employer to fail to act on reported deficiencies in its operational policies and systems or to fail to avail the employee a genuine grievance management procedure, and a termination founded on such unfair labour practices is unfair
  • In discrimination claims under section 5(3) of the Employment Act, the employer bears the burden of proving that the discrimination did not take place
  • Where a termination is partially based on an unlawful reason, compensation under section 49 may be apportioned accordingly

Court orders

#
  1. 1.Payment to the claimant of ksh 564,000.00 less PAYE by 01.03.2020, failing interest at Court rates from the date of judgment till full payment
  2. 2.The respondents to jointly or severally pay the claimant's 50% costs of the suit

Authorities

#

Legislation

  • Employment Act, 2007section 2
  • Employment Act, 2007section 5(3)
  • Employment Act, 2007section 5(6)
  • Employment Act, 2007section 30(1)
  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 46(h)
  • Employment Act, 2007section 49
  • Constitution of Kenya, 2010Article 41(1)

Cases cited (1)

  • Grace Gacheri Muriithi v Kenya Literature Bureau
    (2012) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Article 162(2) Constitution, as implied); Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sitawa v We Effect (Formerly Sweedish Co-operative Centre) & another (Cause 118 of 2016) [2020] KEELRC 1885 (KLR)", Case Analysis (2020). Cause No 118 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1885/eng@2020-01-08

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