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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 1226 (KLR)

Mwongera v Compassion International Kenya (Cause 1489 of 2018) [2024] KEELRC 1226 (KLR)

Employment and Labour Relations Court of Kenya
22 January 2024
6,861 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that transferring a woman to a new role during maternity leave, without consultation, amounts to constructive dismissal and unlawful discrimination.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2006 and last serving as CIV Team Leader on a gross salary of Kshs. 220,564/-, was redeployed by letter dated 29th March 2016 to the position of Training Specialist with effect from 1st April 2016 - while she was on maternity leave and without consultation. She considered the redeployment a demotion, objected through a demand letter and advocates' correspondence, and resigned on 29th July 2016 after over ten years of service. She sued for declaratory orders and damages for unfair and unlawful termination (constructive dismissal), discrimination on account of pregnancy, and unfair labour practices. The Respondent maintained the redeployment was a lateral transfer in good faith consistent with her contract, that she was estopped and uncooperative, and that she voluntarily resigned to avoid discipline. The Court found the timing of the redeployment, effected within two days during maternity leave and without demonstrated operational necessity, suspect and an affront to fair labour practices. It held that distinctions based on pregnancy or maternity are inherently discriminatory, that the Respondent's internal dispute procedures could not be elevated to a fetish to defeat statutory and constitutional rights, and that the resignation fell into the classical mould of constructive dismissal. The Court also condemned the Respondent's practice of placing redeployed long-serving employees on six months' probation as unlawful and ordered it to cease. The suit succeeded in part: the Claimant was awarded 12 months' gross salary (Kshs. 2,626,768/-) for constructive dismissal and Kshs. 2,000,000/- for unfair labour practices, with costs, interest at court rates from judgment, and a certificate of service under section 51 of the Employment Act. The claimed 12% interest from filing was not granted. Nzioki Wa Makau J delivered the judgment at Nairobi on 22nd January 2024.

Key legal issues

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01

Whether the unilateral redeployment of the Claimant during maternity leave and her subsequent resignation amounted to constructive dismissal

Holding

Yes. The employer made her position untenable through the redeployment effected during maternity leave without consultation, and her resignation fell into the classical mould of constructive dismissal

Reasoning

The Court found the redeployment letter was issued while the Claimant was on statutory maternity leave, to take effect within two days, without evidence of operational urgency or consultation. The Respondent ignored the Claimant's grievances raised through her advocates, elevating its internal procedures to a fetish. Having discriminated against the Claimant and rendered her position untenable, her resignation was a constructive dismissal. The contractual test in Coca Cola v Ligaga was met through the employer's repudiatory conduct.

p. 10
02

Whether the Claimant was discriminated against on account of pregnancy/maternity

Holding

Yes. The Claimant was in a protected class while pregnant and lactating, and the redeployment effected during maternity leave, with conversion to probationary terms and requirements to travel contrary to her maternal obligations, was discriminatory and contrary to fair labour practices

Reasoning

The Court held that pregnancy and maternity-based distinctions affect only women and are inherently discriminatory. The timing of the redeployment, two days after the letter during maternity leave, was suspect and an affront to fair labour practices protected by statute, the Constitution and ILO Maternity Protection Convention No. 183. The Respondent's failure to discuss her 2016 performance and its insistence on probationary terms for a confirmed employee further evidenced the unfair treatment.

p. 10
03

Whether the Respondent's practice of placing redeployed employees on six months' probation constituted unfair labour practices

Holding

Yes. Requiring a long-serving employee, on redeployment, to go on probation and thereby become amenable to summary termination is an unfair labour practice and unlawful

Reasoning

The Court reasoned that an employee with years of accumulated rights, such as rights on redundancy, would by a stroke of a pen be treated as a new employee on probation, terminable on seven days' notice. The Court directed that training before redeployment is the lawful alternative and ordered the practice to cease.

p. 10
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What remedies flow from the findings

Holding

The Claimant was awarded 12 months' gross salary as compensation for constructive dismissal, Kshs. 2,000,000/- damages for unfair labour practices, costs, interest at court rates from judgment, and a certificate of service under section 51 of the Employment Act

Reasoning

Having served over 11 years and earned Kshs. 220,564/- gross at resignation, the Court granted the statutory maximum of 12 months' salary for the constructive dismissal. A separate award of Kshs. 2,000,000/- was made for the unfair labour practices, particularly the maternity-related disregard and the unilateral transfer in disregard of lactation requirements and the Respondent's own policies. Interest was awarded at court rates from the date of judgment.

p. 11

Legal principles established

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  • Distinctions in employment based on pregnancy or maternity are discriminatory because they only affect women; redeployment of an employee on maternity leave without justification affronts fair labour practices
  • An employer cannot rely on its internal dispute resolution mechanisms to defeat an employee's constitutional and statutory rights; once the employer is made aware of a grievance, even through a lawyer, it is bound to deal with it
  • A practice of subjecting long-serving redeployed employees to a six-month probation, exposing them to summary termination, is an unfair labour practice and unlawful

Court orders

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  1. 1.Compensation equivalent to 12 months gross salary for the constructive dismissal – Kshs. 2,626,768/-
  2. 2.Damages for the unfair labour practices, including disregard of her maternity-related post-partum situation and the unilateral transfer in disregard of lactation requirements and the Respondent's policies – Kshs. 2,000,000/-
  3. 3.Costs of the suit
  4. 4.Interest on the awards at court rates from the date of judgment till payment in full
  5. 5.A certificate of service strictly in compliance with section 51 of the Employment Act

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41 (fair labour practices)
  • Employment Actsection 29(1) and (2) (maternity leave)
  • Employment Actsection 10(5) (variation of contract)
  • Employment Actsection 5(3) (prohibition of discrimination)
  • Employment Actsection 5(6) (burden of proof)
  • Employment Actsection 43 (reasons for termination)
  • Employment Actsection 49(4) (compensation assessment)
  • Employment Actsection 51 (certificate of service)
  • ILO Maternity Protection Convention No. 183, 2000

Cases cited (12)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • TEC Institute of Management Limited v Owuor
    (Civil Appeal 74 of 2017) [2022] KECA 125 (KLR) (11 February 2022)
  • Godfrey Odipo Tom v Tabasamu Sacco Limited
    [2022] eKLR
  • G M V v Bank of Africa Kenya Limited
    [2013] eKLR
  • Mokaya v Kithure Kindiki t/a Kithure Kindiki & Associates
    (Petition 62 of 2019) [2021] KEELRC 1 (KLR) (30 September 2021)
  • Geofirey Mworia v Water Resources Management Authority & 2 others
    [2015] eKLR
  • John Moogi Omare v Kenya National Commission for UNESCO
    [2020] eKLR
  • Robert Indiazi v Tembo Sacco Limited
    [2018] eKLR
  • Lucy Kerubo v Chairman – Finmax Community Based & 2 others
    [2016] eKLR
  • Premier Construction Limited v Josephat Bwire Lukale & 5 others
    [2017] eKLR
  • Rhoda Nyatuka Isena v Coptic Hospital
    [2021] eKLR
  • Caroline Nyokabi Mwangi v Achellis Kenya Limited
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution and the Employment Act (fair labour practices dispute)

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, "Mwongera v Compassion International Kenya (Cause 1489 of 2018) [2024] KEELRC 1226 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1226/eng@2024-01-22

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