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ELRCPartially AllowedCause No 343 of 2017· [2021] KEELRC 1039 (KLR)

Mildred Amagove v Ultimate Manpower & General Supplies Ltd [2021] KEELRC 1039 (KLR)

Employment and Labour Relations Court
10 September 2021
2,132 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing a woman the day she returned from maternity leave was unlawful discrimination, awarding her over Ksh 620,000.

What this practically means

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Executive summary

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This was an undefended claim before the Employment and Labour Relations Court arising from the alleged termination of the Claimant's employment. The Claimant, employed as a general worker from around May 2013 at a starting salary of Ksh 12,000/=, proceeded on maternity leave around late August 2016 after delivering on 9th September 2016. She testified that upon resuming duty on 29th November 2016 her services were terminated without notice, valid reason or due process, and that her termination was triggered by her pregnancy in violation of article 27 of the Constitution and section 5 of the Employment Act. She further claimed unpaid salary during maternity leave, service pay, notice pay and twelve months' compensation. The Respondent, though served, did not enter appearance or file a reply, and the cause proceeded undefended. The court found the Claimant entitled to three months' maternity leave with full pay under section 29 of the Employment Act and held that terminating her upon resumption violated that provision. Given the absence of contrary evidence and the Respondent's own favourable recommendation letter, the court found the only plausible explanation for the termination was the pregnancy and maternity leave, offending sections 5, 35, 41, 45 and 46 of the Employment Act and article 27 of the Constitution. Guided by precedent cautioning against multiple awards on the same facts, the court consolidated the discrimination damages and twelve months' compensation into a global award of Ksh 550,000/=, and further awarded Ksh 18,000/= service pay, Ksh 18,000/= notice pay and Ksh 35,500/= withheld maternity salary, with interest and costs to the Claimant, subject to statutory deductions.

Key legal issues

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01

Unlawfulness of the termination

Holding

The termination was unfair and unlawful for want of notice under section 35, valid reason under sections 41 and 45, and due process

Reasoning

The Claimant testified that her services were terminated on 29th November 2016 upon resuming duty from maternity leave. The Respondent did not enter appearance or file a reply, so the evidence was uncontroverted. The court found no notice was issued, no valid reason advanced, and no due process observed, contrary to sections 35, 41 and 45 of the Employment Act.

p. 2
02

Pregnancy-based discrimination

Holding

The termination was on account of the Claimant's pregnancy and maternity leave, violating article 27 of the Constitution and section 5 of the Employment Act

Reasoning

In the absence of contrary evidence, and given the Respondent's own recommendation describing the Claimant as trustworthy, diligent and honest, the only plausible explanation for termination immediately upon resumption from maternity leave was the pregnancy and the leave taken. This differential treatment at the workplace is expressly forbidden by law.

p. 2
03

Entitlement to maternity leave with full pay

Holding

The Claimant was entitled to three months' maternity leave with full pay under section 29 of the Employment Act, and terminating her upon resumption violated that provision

Reasoning

The notification of birth established delivery on 9th September 2016, supporting the Claimant's assertion that she proceeded on maternity leave around late August 2016. Her leave therefore ran to the close of November 2016, during which she was entitled to full pay and to resume her duties. Terminating her on resumption violated section 29.

p. 2
04

Quantum of remedies

Holding

A consolidated global award of Ksh 550,000/= for discrimination and unlawful termination, plus notice pay, service pay and withheld salary

Reasoning

Guided by the principle against multiple awards on the same facts and against constitutional remedies where statutory remedies suffice, the court consolidated the discrimination damages and the twelve months' compensation into one global award. Notice pay, service pay (capped at the amount prayed) and withheld maternity leave salary were awarded distinctly, with interest and costs.

p. 3

Legal principles established

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  • A female employee is entitled to maternity leave of not less than three months with full pay, and to resume her previous or a substantially similar position thereafter
  • General damages for violation of a constitutional right arising from a contract of service may be awarded outside the twelve months' cap under section 49, but only in exceptional circumstances and not where remedies under the Act suffice
  • The court computes service pay under section 35(5) of the Employment Act by borrowing the severance formula of 15 days' pay per year worked under section 40
  • Termination of an employee immediately upon resumption from maternity leave, without notice, valid reason or due process, is unlawful and discriminatory

Court orders

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  1. 1.Global award of Ksh 550,000/= as compensation for violation of the right against discrimination and for unlawful termination
  2. 2.Service pay of Ksh 18,000/=
  3. 3.Pay in lieu of notice of Ksh 18,000/=
  4. 4.Withheld salary (leave pay) of Ksh 35,500/=
  5. 5.Interest at court rates on the compensation, service pay and notice pay
  6. 6.Award subject to applicable statutory deductions
  7. 7.Costs of the claim to the Claimant

Authorities

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Legislation

  • Constitution of Kenya 2010article 27
  • Employment Act, 2007section 5
  • Employment Act, 2007section 29
  • Employment Act, 2007section 35 and section 35(5)
  • Employment Act, 2007section 40
  • Employment Act, 2007sections 41, 45 and 46
  • Employment Act, 2007section 49
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Claudine Wanjiku Mboce v Exon Investments Limited & another
    [2017] eKLR
  • G M V v Bank of Africa Kenya Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and article 27 of the Constitution of Kenya 2010 (as pleaded by the Claimant)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mildred Amagove v Ultimate Manpower & General Supplies Ltd [2021] KEELRC 1039 (KLR)", Case Analysis (2021). Cause No 343 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1039/eng@2021-09-10

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