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ELRCAllowedCause No 2106 of 2016· [2022] KEELRC 22 (KLR)

Mbugua v Zakhem Construction (Kenya) Limited (Cause 2106 of 2016) [2022] KEELRC 22 (KLR)

Employment and Labour Relations Court of Kenya
26 April 2022
1,848 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant sued her former employer for unfair and unlawful termination of employment and discrimination based on gender and pregnancy. She was employed as a Document Controller on 20th May 2015, executing a contract on 24th June 2015 at a gross monthly salary of Kshs. 50,387/-. She alleged that on 22nd October 2015 she was issued a termination letter without explanation after informing management of her impending maternity leave, effective 26th November 2015. She sought terminal benefits, three months' maternity leave entitlement, general damages for discrimination, three months' salary in lieu of notice, unpaid leave, refunds of unremitted statutory deductions, a certificate of service, a P9A form, interest and costs. The Respondent countered that she was on a temporary contract, performed dismally, received two warning letters and absconded duty, and that termination was by one month's notice unconnected to her pregnancy. The Respondent filed no submissions. The court found the Respondent failed to discharge its burden under Sections 43, 45 and 47 of the Employment Act: no valid reasons were proved, no investigations or disciplinary process under Section 41 were undertaken, and a warning letter is not a notice to show cause. The termination was discriminatory on account of pregnancy, the Respondent having failed to prove that discrimination did not occur. The court awarded six months' salary (Kshs. 302,322/-) for unlawful termination, Kshs. 500,000/- for discrimination, costs of the suit, interest at court rates, and a P9 form failing which the Respondent would be reported to KRA. It is so ordered.

Key legal issues

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01

Substantive justification for termination

Holding

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.

Reasoning

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.

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02

Procedural fairness

Holding

The Claimant was not taken through the disciplinary process under Section 41; no notice to show cause or disciplinary hearing was conducted.

Reasoning

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.

p. 3
03

Discrimination on account of pregnancy

Holding

The termination on account of pregnancy was discriminatory; the Respondent failed to prove that discrimination did not take place.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.6 months' salary as compensation for the unlawful termination - Kshs. 302,322/-
  2. 2.Kshs. 500,000/- for the discrimination suffered on account of pregnancy
  3. 3.Costs of the suit
  4. 4.Interest at Court rates on the sums awarded from the date of judgment till payment in full
  5. 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

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45(2), 45(4)
  • Employment Act, 2007Section 46(a)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 51(1)
  • Employment Act, 2007Section 5
  • Constitution of Kenya, 2010Article 27(4) and (5)
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47

Cases cited (8)

  • Abraham Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others
    [2019] eKLR
  • Erick Kamau v New Kenya Co-operative Creameries Limited
    [2018] eKLR
  • G.M.V v Bank of Africa Kenya Limited
    [2013] eKLR
  • Hosea Akunga Ombwori v Bidco Oil Refineries Limited
    [2017] eKLR
  • Rodgers Atuulo Ambasu v Budget Payless Car Hire & Tours Limited
    [2019] eKLR
  • Moses Kaunda Moro v CMC Motors Group Limited
    [2013] eKLR
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

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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, "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.