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ELRCPartially AllowedNot specified in the judgment text provided· [2022] KEELRC 784 (KLR)

Sheila Faith Funa Esposito v Nyali Academic Services t/a the Mombasa Academy [2022] KEELRC 784 (KLR)

Employment and Labour Relations Court
18 February 2022
3,394 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a teacher's dismissal after maternity leave was fair because she refused assigned duties, though the school must refund a wrongly deducted tax amount.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a mathematics and science teacher on fixed-term contracts from 2015, notified the respondent in April 2017 that she would be due for maternity leave effective September 2017. She delivered twins by emergency caesarean section on 04.08.2017. She alleged that the respondent withheld her salary during maternity leave, harassed, intimidated and discriminated against her on account of pregnancy, and ultimately summarily dismissed her on 25.01.2018 for refusing to take up assigned classes, in violation of constitutional and statutory employment protections. She sought declarations of unfair, unprocedural and discriminatory dismissal, three months' notice pay, house allowance, a refund of excess PAYE, twelve months' compensation for unfair termination, damages for discrimination, costs and interest. The respondent admitted the summary dismissal but attributed it to the claimant's insubordination in refusing to teach senior examination classes to which she had been redeployed, and denied discrimination and withheld salary. The court held the disciplinary procedure complied with section 41 of the Employment Act; that the redeployment was within the contract and the claimant's refusal amounted to gross misconduct constituting a fair reason under section 45; that no discrimination on account of pregnancy was proved; and that the consolidated salary included house rent, defeating the house allowance claim. Only the claim for the excess PAYE deduction of Kshs. 4,789.60 succeeded, being admitted in the pleadings and unanswered in submissions. Judgment was entered for the claimant for that sum with interest, with each party bearing its own costs.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The procedure was fair as it entailed a show-cause letter and disciplinary hearings as envisaged in section 41 of the Employment Act

Reasoning

The claimant received the letter to show cause dated 12.01.2018 and was invited to disciplinary hearings on 15.01.2018 and 18.01.2018. She attended and responded by email. Although she declined to sign the minutes and her first hearing was adjourned because she arrived with her spouse, the court held the process satisfied section 41 of the Employment Act, 2007.

p. 3
02

Substantive fairness – valid reason for termination

Holding

The reason for termination was fair: the claimant's refusal to take up reassigned teaching duties amounted to fundamental breach/gross misconduct

Reasoning

The claimant was employed to teach mathematics and science and the contract permitted assignment of other duties. The redeployment to senior classes was conveyed before maternity leave and was within her contractual duties. Her insistence on co-teaching, mentorship and handover, and her threat to disclose parental concerns, showed unwillingness to work as reassigned, justifying dismissal under section 45 of the Act.

p. 4
03

Discrimination on account of pregnancy

Holding

No discrimination on account of pregnancy was established

Reasoning

The claimant was granted maternity leave with full pay, and despite her pregnancy notification the respondent renewed her contract when it could have declined to do so. The dispute over the maternity leave period was resolved through a disciplinary process in which she was exculpated. Her own cross-examination that her salary was paid in full during maternity leave contradicted the discrimination claim. No constitutional violations were proved.

p. 4
04

Unlawful PAYE deduction for January 2018

Holding

The claimant was entitled to a refund of the excess PAYE deduction of Kshs. 4,789.60

Reasoning

The claimant computed the PAYE payable on the January 2018 payment of Kshs. 64,167.00 as Kshs. 11,582.60 rather than the Kshs. 16,372.00 actually deducted. The respondent's pleadings admitted the disputed deduction, and the respondent was silent on the issue in submissions. The court found the claimant entitled as prayed for.

p. 4

Legal principles established

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  • At expiry of maternity leave, a female employee has the right to return to the job held immediately prior to leave or a reasonably suitable job on terms not less favourable, per section 29(2) of the Employment Act
  • A fair disciplinary procedure under section 41 of the Employment Act entails notice of allegations and a disciplinary hearing
  • An employer may summarily dismiss for gross misconduct without contractual notice under section 44 of the Employment Act

Court orders

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  1. 1.The respondent to pay the claimant a sum of Kshs. 4,789.60 plus interest at Court rates from the date of filing the suit until the date of full payment
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(4), 28, 41, 50
  • Employment Act, 2007sections 5(2) and (3), 29, 31, 41, 44(1) and (2), 45, 46(a), (b) and (h)
  • Income Tax Act3rd Schedule
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 162(2) of the Constitution (as pleaded through the Employment Act and constitutional provisions invoked in the claim)

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, "Sheila Faith Funa Esposito v Nyali Academic Services t/a the Mombasa Academy [2022] KEELRC 784 (KLR)", Case Analysis (2022). Not specified in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/784/eng@2022-02-18

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