Fridah Nyabonyi Abuya v Virtual Hr Services Limited [2021] KEELRC 2259 (KLR)
The bottom line
#A Kenyan court dismissed a maternity discrimination claim because the employee's own misconduct, not pregnancy, justified her dismissal.
What this practically means
#Executive summary
#Key legal issues
#Validity and lawfulness of the termination
The termination was lawful and valid; the Claimant committed gross misconduct by insulting her superior, absconding and refusing to attend to a client, and the Respondent followed a fair disciplinary procedure.
The court required the employer to prove valid reason under Section 43 and fair procedure under Section 41. Both parties confirmed the Claimant never returned to work after 11 March 2015. She failed to respond to the show cause letter or attend the disciplinary hearing despite being invited. Her alleged oral dismissal on requesting maternity leave was found untrue; the demand letter did not prompt the disciplinary process, and her conduct constituted gross misconduct under Section 44 of the Employment Act.
Whether the Claimant was discriminated against due to pregnancy
The allegation of dismissal upon requesting maternity leave was found untrue; the Respondent followed its disciplinary procedure in accordance with the law.
The Claimant alleged she was orally terminated upon requesting maternity leave and faced harassment. The court found from the evidence and the chronology of the show cause letter and disciplinary process that this allegation was not true, and that the Respondent conducted the disciplinary procedure per the law and internal guidelines. The Claimant also admitted not raising any complaint through the grievance procedure.
Entitlement to reliefs
No reliefs were awarded because the termination was fair.
Having found the termination valid and lawful, the court held the Claimant was not unfairly terminated and her tabulated claim of Kshs.727,007.66, comprising notice pay, loss of future earnings, maternity leave pay, service pay, pro rata leave and unpaid commissions, could not stand. The entire claim was dismissed with no orders for costs.
Legal principles established
#- For a termination to be valid and lawful the employer must prove both valid reason (Section 43) and fair procedure (Section 41) under the Employment Act, and compliance with any internal disciplinary process.
- Insults to a superior, absence from work without authorisation and refusal to attend to a client amount to gross misconduct justifying summary dismissal.
Court orders
#- 1.The entire claim fails and is dismissed
- 2.No orders for costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Union of Commercial, Food and Allied Workers v Endarasha Dairy Farmers Co-operative Society Limited (Cause E018 of 2020) [2022] KEELRC 4137 (KLR)[2022] KEELRC 4137 (KLR)28 Sept 2022
- Joseph Oketch Oduro v Jomo Kenyatta University of Agriculture And Technology [2022] KEELRC 956 (KLR)[2022] KEELRC 956 (KLR)28 Jan 2022
Cite this brief
#Cite this brief
Caselaw, "Fridah Nyabonyi Abuya v Virtual Hr Services Limited [2021] KEELRC 2259 (KLR)", Case Analysis (2021). Cause No 909 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2259/eng@2021-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.