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ELRCDismissedPetition dated September 12, 2022 (number not stated)· [2023] KEELRC 1498 (KLR)

Ogayo v China Wu Yi Company Limited (Petition E168 of 2022) [2023] KEELRC 1498 (KLR)

Employment and Labour Relations Court
Invalid Date
AMANNA NGIBUINI MWAURE
3,955 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employment court dismissed a pregnancy discrimination claim because the worker couldn't prove it, but she still received notice pay and leave dues.

What this practically means

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Executive summary

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The Petitioner, a kitchen assistant employed orally by the Respondent from April 2009, claimed she was discriminated against and constructively terminated on account of her pregnancy. She alleged she was ordered not to bring her newborn to the company's living quarters or workplace, was abruptly transferred to Athi River, and was then served an unsigned termination letter dated June 27, 2022 citing redundancy. She sought declarations under Article 27 and sections 5(3) and 40 of the Employment Act, compensation and terminal benefits. The Respondent denied discrimination, asserted it accommodated her during pregnancy and maternity leave, said the transfer was lawful, denied issuing any termination letter, and contended she absconded, prompting letters inviting her to resume work. The court set out the burden framework: under section 5(6) of the Employment Act the employer must disprove discrimination once a prima facie case is shown. However, it found the Petitioner failed to establish a prima facie case of pregnancy-based discrimination, holding that the employer may control residence on its premises and lawfully transfer employees, and that lack of baby facilities is not discrimination. The unsigned redundancy letter was held inauthentic. Concluding there was neither discrimination nor a proved redundancy, the court found the Petitioner left employment of her own decision. The petition was dismissed with each party bearing their own costs, but the court ordered the Respondent to pay Kshs 36,000 (one month's notice salary and accrued leave) plus interest, per its own offer.

Key legal issues

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01

Pregnancy-based discrimination

Holding

Claim dismissed - no evidence of discrimination on account of pregnancy or delivery of a baby; failure to accommodate a baby at the workplace is not discrimination

Reasoning

The court held that the dispute stemmed from differences over bringing a new born to the workplace, not from pregnancy. The employer may control who resides on its premises and may transfer employees; the transfer to Athi River was a single decision not rendered discriminatory by the Petitioner's child. Section 5(6) places the burden on the employer once a prima facie case is made, but none was established.

p. 7
02

Authenticity of the alleged redundancy termination letter

Holding

The unsigned letter of June 27, 2022 was not authentic and could not be attributed to the Respondent

Reasoning

The Petitioner relied on an unsigned letter dated June 27, 2022 indicating redundancy. The Respondent denied issuing it, noting all its documents are signed. The court found the letter not genuine and thus no proof of a section 40 redundancy process.

p. 7
03

Whether the termination was unlawful

Holding

Having found no discrimination and no redundancy, the court found the Petitioner left employment voluntarily

Reasoning

With the discrimination claim unproved and the redundancy letter disbelieved, the court concluded the Petitioner exited employment on her own decision. The Respondent's letters of September 15 and 21, 2022 inviting her to resume work reinforced this finding, despite her offer to pay notice and leave being noted.

p. 7

Legal principles established

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  • By dint of section 5(6) of the Employment Act, the employer bears the burden of proving that discrimination did not take place as alleged
  • The employer has the latitude to decide who, apart from an employee, may have permanent abode on its premises, and may make reasonable decisions to transfer employees
  • The employee must establish a prima facie case of pregnancy-based discrimination which the employer must then controvert

Court orders

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  1. 1.The petition dated September 12, 2022 is dismissed
  2. 2.Each party to meet their own costs
  3. 3.The Respondent to pay the Petitioner one month salary in lieu of notice of Kshs 18,000 and leave days of Kshs 18,000, totalling Kshs 36,000, with interest from the date it was due till payment

Authorities

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Legislation

  • Employment Actsections 5(3), 5(6), 40, 43, 46(a)
  • Constitution of Kenya, 2010Articles 23, 27(4), 27(5), 41, 45(1), 159(2)(d), 48
  • Evidence Actsections 107 and 108
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Laws of Kenya (Companies)Chapter 486
  • ILO Maternity Protection Conventionnot specified

Cases cited (6)

  • Tracy Wangechi Mugambi v Windsor Golf Hotel and Country Club
    2019 eKLR
  • Yasmine Josephine Mokaya v Kithure Kindiki T/A Kithure Kindiki & Associates
    (2021)
  • VMK v CUEA (Industrial Court at Nairobi, Cause No 1161 of 2020)
  • Daniel Musinga t/a Musinga and Co Advocates v Nation Newspapers Limited
    (2000) eKLR
  • GMV v Bank of Africa (Industrial Cause Number 1227 of 2011)
  • Reeves v Sanderson Plumbing Products Inc
    530 US. 138, 141
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007; Article 41 and 27 of the Constitution invoked by the parties)

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, "Ogayo v China Wu Yi Company Limited (Petition E168 of 2022) [2023] KEELRC 1498 (KLR)", Case Analysis (). Petition dated September 12, 2022 (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1498/eng@2023-06-13

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