Macharia v 680 Operations Limited (Petition 231 of 2019) [2022] KEELRC 4122 (KLR)
The bottom line
#A Kenyan court awarded a cashier over Kshs 415,000 because her employer could not prove it held a fair disciplinary hearing before dismissing her during maternity leave.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively valid
On the one hand the court found the grounds for termination were not proved, yet it also found the Respondent had a valid reason under Section 45; the ultimate award was for lack of procedure only
The court stated that Section 43 of the Employment Act required the Respondent to prove the grounds for termination, namely gross misconduct for involvement in front office operations causing loss of revenue. The court found this was not proved and that there was thus no proof of a valid reason. However, in the immediately following paragraph the court found the opposite, that the Respondent had a valid reason to terminate under Section 45. The compensation award rested on procedural unfairness.
Whether the termination was procedurally fair under Section 41
The termination was procedurally unfair as the Respondent failed to prove that a disciplinary hearing took place or that the Petitioner was informed of her right to be accompanied
Section 41 requires an employer, before termination on grounds of misconduct, to explain the reason to the employee and to hear and consider any representations, with an entitlement to be accompanied by a colleague or union representative. The court found no evidence of an invitation to a disciplinary hearing, no evidence the Petitioner was informed of her right to be accompanied, and no evidence that any hearing took place. The letter of July 8, 2019 merely instructed her to report for 'further instructions', and the dismissal letter did not refer to any hearing.
Whether the Petitioner was discriminated against on account of pregnancy
The claim of discrimination on account of pregnancy failed for want of proof
The Petitioner bore the burden of proving discrimination. She admitted she had previously taken maternity leave without victimisation and that a colleague also dismissed in the same action was likewise on maternity leave, showing the action was not isolated to her. The court held that recalling an employee from maternity leave to attend a disciplinary hearing on matters unconnected with maternity leave could not amount to discrimination, and dismissed the claim for want of proof.
What reliefs follow from a termination that was unfair for want of fair procedure
Terminal dues in full, four months' salary as compensation under Section 49, and a certificate of service were awarded; maternity-leave loss and constitutional damages were refused
Having found procedural unfairness, the court awarded all itemised terminal dues of Kshs 256,674.94, and applying the Section 49 factors considered four months' salary (Kshs 158,768/-) reasonable compensation. The certificate of service was directed to issue under Section 51. Compensation for loss of maternity leave failed because the Petitioner took her maternity leave up to the termination date, and the constitutionalised damages claims failed for want of proof.
Legal principles established
#- An employer must establish both valid and fair reasons and a fair procedure for a termination to pass the test of fairness
- An employer who alleges a disciplinary hearing took place must adduce evidence of it; failure to prove a hearing under Section 41 renders the termination unfair
- Recalling an employee from maternity leave to attend a disciplinary hearing on matters unconnected with maternity leave does not amount to discrimination
Court orders
#- 1.Respondent to issue the Petitioner with a Certificate of Service under Section 51 of the Employment Act, 2007
- 2.Respondent to pay terminal dues totalling Kshs 256,674.94 (one month salary in lieu of notice Kshs 39,692.00; salary for June 2019 Kshs 39,692.00; salary for 22 days for July 2019 Kshs 29,107.47; 18 days accrued leave Kshs 23,815.20; 7 days public holidays worked Kshs 9,261.47; 2 off days not taken Kshs 2,646.13; gratuity for 4 years Kshs 79,384.00; 25 days leave worked Kshs 33,076.76)
- 3.Respondent to pay Kshs 158,768/- being four months' salary as compensation for unfair termination under Section 49 of the Employment Act
- 4.Petitioner awarded costs of the petition
- 5.Interest at court rates from the date of judgment until settlement in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution of Kenya, 2010 (Articles 27, 41, 47)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia v 680 Operations Limited (Petition 231 of 2019) [2022] KEELRC 4122 (KLR)", Case Analysis (2022). Petition dated November 12, 2019 (filed December 5, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4122/eng@2022-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.