Mbugua v Zakhem Construction (Kenya) Limited (Cause 2106 of 2016) [2022] KEELRC 22 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
The Respondent failed to prove valid and fair reasons for termination; no investigations were conducted and no evidence of poor performance targets or appraisals was adduced.
Section 43 obliges an employer to prove the reasons for termination and Section 45(2) requires those reasons to be valid and fair. The termination letter gave no valid reasons and no investigations were conducted. Poor performance allegations require evidence of specific targets and appraisals, none of which was produced. The employer also failed to discharge its burden under Sections 43, 45 and 47 of the Employment Act.
Procedural fairness
The Claimant was not taken through the disciplinary process under Section 41; no notice to show cause or disciplinary hearing was conducted.
Section 41 requires that allegations of poor performance or gross misconduct be explained to the employee before termination. The Claimant was issued only warning letters and never a notice to show cause, and no disciplinary meeting with documentation such as minutes was proved. A warning letter is not equivalent to a show cause letter, and fairness requires more than a show cause letter - a properly documented hearing.
Discrimination on account of pregnancy
The termination on account of pregnancy was discriminatory; the Respondent failed to prove that discrimination did not take place.
Article 27(4) and (5) of the Constitution and Section 46(a) of the Employment Act prohibit dismissal on grounds of pregnancy. In proceedings where contravention of Section 5 of the Employment Act is alleged, the employer bears the burden of proving no discrimination occurred. The Claimant was terminated after informing management of her impending maternity leave, and the Respondent did not discharge that burden.
Legal principles established
#- Poor work performance is an allegation that must be supported by evidence of specific performance targets, appraisal of the performance, with specific results.
- Both substantive justification and procedural fairness are required for a termination of employment to pass the fairness test.
- Where a contravention of Section 5 of the Employment Act is alleged, the employer bears the burden of proving that discrimination did not take place.
- A warning letter cannot be equated to a notice to show cause under Section 41 of the Employment Act.
- Pregnancy or any reason connected with pregnancy does not constitute fair reasons for dismissal.
Court orders
#- 1.6 months' salary as compensation for the unlawful termination - Kshs. 302,322/-
- 2.Kshs. 500,000/- for the discrimination suffered on account of pregnancy
- 3.Costs of the suit
- 4.Interest at Court rates on the sums awarded from the date of judgment till payment in full
- 5.P9 form for the relevant year to enable the Claimant file tax returns, failing which the Respondent should be reported to KRA for non-compliance
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 46, 47, 49 and 51) and Articles 27, 41 and 47 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugua v Zakhem Construction (Kenya) Limited (Cause 2106 of 2016) [2022] KEELRC 22 (KLR)", Case Analysis (2022). Cause No 2106 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/22/eng@2022-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.