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ELRCPartially AllowedCause No. 473 of 2016

Ruth Nyabio v Beverly Schools of Kenya Limited [2021] KEELRC 2352 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
2 March 2021
3,803 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a teacher's sacking was unfair because the school never gave her a hearing, but refused her sexual harassment damages.

What this practically means

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Executive summary

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The claimant, a teacher employed by the respondent school on 4th January 2016 at an agreed verbal wage of Ksh.35,000 per month, alleged that the principal, Mr Akide, sexually harassed her and, on her refusal of his advances, demoted her, incited students against her, and engineered her termination. She was paid only Ksh.17,000 for January 2016, was made to sign a contract under duress on 23rd February 2016 which the principal allegedly backdated and forged, and was then issued a termination letter dated 22nd February 2016 giving seven days' notice. The respondent, though served, did not attend the hearing and called no evidence. Relying on an earlier ruling and the uncontroverted evidence, the court found no written contract existed and that the agreed wage was Ksh.35,000 monthly. It held that the termination, described as the services no longer being required, amounted to a redundancy without the section 40 procedures, and that the alternative defence of poor performance required the mandatory section 41 hearing which was not accorded. The termination was therefore unfair under section 45. The court awarded unpaid wages of Ksh.47,000, one month's compensation of Ksh.35,000, and one month's notice pay of Ksh.35,000, plus costs. However, the claim for Ksh.1,500,000 general damages for sexual harassment was refused because the claimant declined the employer's invitation to report back to work to allow investigations of her complaint, filing suit instead. Judgment delivered on 2nd March 2021 by M. Mbaru, J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant's wages for January and February 2016 were unpaid and payable
  2. 2.Whether the termination of the claimant's employment was unfair and unlawful
  3. 3.Whether the claimant was sexually harassed by the principal, Mr Akide, and whether general damages for sexual harassment are payable

Key legal issues

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01

Unpaid wages

Holding

The claimant was owed Ksh.47,000 being the balance for January 2016 (Ksh.12,000) and February 2016 wage (Ksh.35,000).

Reasoning

The parties agreed a monthly wage of Ksh.35,000. The claimant worked two months, so Ksh.70,000 was due; she was paid Ksh.17,000 in January and Ksh.5,000 by the human resource officer, leaving Ksh.47,000. Section 18 of the Employment Act requires wages to be paid as agreed for work done.

p. 4
02

Unfair termination of employment

Holding

The termination was unfair; no written contract existed, no genuine and reasonable cause was proved, and no hearing was accorded as required by sections 41, 43 and 45 of the Employment Act.

Reasoning

Termination was on grounds that services were no longer required, amounting to redundancy under section 2, but no evidence was submitted on how the decision was arrived at, and section 40 procedures were not followed. Alternatively, the defence of poor performance and troubled discipline required the mandatory section 41 process, which was not followed, rendering the termination unfair under section 45.

p. 4
03

Sexual harassment claim

Holding

Though the allegations were serious and the employer owed duties under section 6 of the Employment Act, general damages were refused because the claimant declined to return to work to allow investigations of her complaint.

Reasoning

The employer reinstated the claimant and changed her supervisor to allow investigation of the complaint against the principal. The claimant instead filed suit the very day she was to report back. The court found the refusal to attend unjustified, as the matter might have been resolved at the shop floor had she attended.

p. 5

Legal principles established

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  • Where an employer alleges termination for poor performance or misconduct, section 41 of the Employment Act requires notice and a hearing before termination, and these provisions are mandatory.
  • Where the defendant calls no evidence, the court is entitled to believe the claimant's unchallenged assertion of facts.
  • An employer must investigate sexual harassment complaints promptly; failure to do so impedes employee rights, but an employee who reports such complaints should oblige an invitation to allow investigations.

Court orders

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  1. 1.Compensation Ksh.35,000
  2. 2.Notice pay Ksh.35,000
  3. 3.Unpaid salaries for January and February 2016 Ksh.47,000
  4. 4.Costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution read with the Employment and Labour Relations Court Act - the court's jurisdiction over employment and labour relations disputes (implied; the judgment does not expressly invoke a provision)

Relief refused

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General damages for sexual harassment of Ksh.1,500,000

The claimant refused the employer's invitation to report back to work to allow investigations of her sexual harassment complaint, so the court found no justification for rushing to court instead of resolving the matter at the shop floor.

p. 5

Salary for a 2-year contract terminated (Ksh.840,000)

No written contract for 2 years existed; employment terms were verbal and the claimant worked only two months.

p. 4

Damages for unfair termination of employment of Ksh.420,000

Compensation was limited to one month's gross wage given the two months of service.

p. 4

Costs

Costs of the suit awarded to the claimant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the court finds employment terminated on 23 rd February, 2016 unfairly and judgement is hereby entered for the claimant against the respondent in the following terms; (a) Compensation Ksh.35,000; (b) Notice pay Ksh.35,000; (c) Unpaid salaries for January, and February, 2016 Ksh.47,000; (d) Costs of the suit
p. 5Final orders and disposition
The court finds no evidence that the claimant was accorded the due process of section 41 of the Act. the resulting termination of employment was unfair pursuant to section 45 of the Act. compensation is due under section 49 of the Act.
p. 4Unfair termination and mandatory hearing
Without any evidence called by the respondent, the court must believe the claimant in her assertion of facts with regard to her employment
p. 3Uncontroverted evidence
Where an employee makes sexual harassment allegations, the employer is bound to conduct investigations and have these addressed instantly and to fail to do so impedes on the rights of an employee or employees at the shop floor.
p. 5Employer's duty on sexual harassment complaints
… an employer shall not be allowed to simply cite re-organisation [redundancy] as a sufficient reason to lay off an employee, due process demands that consultations be inclusive and documented.
p. 4Redundancy - quoted with approval from Jane Khalechi v Oxford University Press EA Limited

Issues in the judgment

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minor

The judgment states the claimant filed suit on 23rd March, 2018 while the cause number is of 2016 and the defence was filed on 19th April, 2016, an internal inconsistency in dates.

minor

The termination letter is dated 22nd February, 2016 but is quoted as stating termination 'with effect from 29 th February, 2017', a year inconsistent with the February 2016 termination.

minor

The judgment inconsistently states the termination date as 22nd/23rd February 2016 with effect from 29th February 2016 in one passage, and as 23rd February 2016 in the disposition.

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, "Ruth Nyabio v Beverly Schools of Kenya Limited [2021] KEELRC 2352 (KLR)", Case Analysis (2021). Cause No. 473 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2352/eng@2021-03-02

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