Wilson v Imarisha Mabati Limited (Appeal E023 of 2021) [2023] KEELRC 573 (KLR)
The bottom line
#A Kenyan court confirmed that firing a woman one month after maternity leave, without reasons, was pregnancy discrimination worth Kshs. 500,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant's contract was probationary
The Appellant's contract was not probationary; the alleged extension of probation was not proved
The Appellant had completed her six months' probation before proceeding on maternity leave. The Respondent alleged the probation was extended for a further six months, but the email said to communicate the extension was never produced, and the Appellant did not admit the purported oral discussion. The extension was therefore unproved, and the Appellant was entitled to full procedural fairness and substantive reasons, which were not given.
Whether the termination was unfair and unlawful
The Trial Court's finding of unfair and unlawful termination was upheld
The termination letter gave no reasons. The Respondent alleged poor performance, but led no evidence of any performance evaluation policy or practice, and no opportunity to be heard was shown. The court held that even a probationary employee enjoys the statutory right not to be unfairly terminated, and the Appellant's right under sections 41, 43 and 45 of the Employment Act was violated.
Whether the Appellant was discriminated against on account of pregnancy and entitled to damages
The finding of discrimination was upheld, and damages of Kshs. 500,000/- were awarded since the Trial Court made no award despite finding discrimination
The Appellant was terminated one month after returning from maternity leave, with no reasons given and no evidence of redundancy affecting others; her position was filled immediately. The court concluded the termination was pre-determined and premised on her pregnancy, violating Article 27 of the Constitution, and, the Trial Court having awarded nothing for discrimination, awarded Kshs. 500,000/-.
Whether the award of two months' salary should be enhanced to twelve months
The two months' award was upheld and enhancement refused
Compensation under section 49 of the Employment Act is discretionary, guided by the statutory factors including length of service. The Trial Court based the two months' award on the Appellant's short time in service. Being an exercise of discretion, the appellate court found no basis to set it aside or interfere with it.
Legal principles established
#- An employee on probation is entitled to procedural fairness and substantive reasons for termination; the right not to be unfairly terminated cannot be abrogated merely because the employee is on probation
- An employer relying on poor performance bears a high level of proof and must show a policy or practice for measuring performance
Court orders
#- 1.The Trial Court's finding that the Appellant was unfairly terminated is upheld
- 2.The Trial Court's award of 2 months' salary as compensation for unfair termination is upheld
- 3.An award of Kshs. 500,000/- in damages for discrimination
- 4.The Respondent will bear the costs of the appeal
- On appeal from
- Trial Court (magistrates' court, Employment and Labour Relations cause)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the Trial Court's judgment of 16th June 2021 (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson v Imarisha Mabati Limited (Appeal E023 of 2021) [2023] KEELRC 573 (KLR)", Case Analysis (2023). Appeal No E023 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/573/eng@2023-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.