Mary Nanjala Nyongesa v Tsula Health Care Ltd T/A Wanda Medical Centre

Service for over two years on a fixed monthly salary of Kshs33,000, paid monthly, was common ground. The Respondent, as custodian of employment records under Sections 10 and 74 of the Employment Act, produced no contract or records supporting a locum engagement, and its attendance list did not show locum status. Invoking Section 109 of the Evidence Act, the Court presumed the withheld evidence would have favoured the Claimant; a fixed monthly salary is inconsistent with locum work, and Section 38 empowers the Court to classify the relationship.

The Respondent issued no termination notice, preferred no misconduct charges, conducted no disciplinary hearing, issued no redundancy notice and paid no terminal dues. Its justifications — financial stress from the NHIF-to-SHA migration and the Claimant's failure to use the online leave system — were unsupported; its own human resources officer conceded the SANITAS system was down and the Claimant visibly heavily pregnant. Dismissing a heavily pregnant employee on the eve of delivery for applying for leave was held blatantly shocking, illogical, unreasonable and inhumane.

Applying Gichuru, Sikulu and Rose Wangui Mambo, the Court required prima facie proof, on a balance of probabilities, of differential treatment — for instance that other pregnant employees applied for leave, had it approved, and were not dismissed. No comparative evidence was tendered. The Respondent advanced non-pregnancy reasons: financial constraints and the improper leave application, which the Court found 'nauseating' but not pregnancy-based. The dismissal was therefore attributed to reckless and careless human resource management rather than pregnancy.

The manual maternity leave application was accepted as valid notwithstanding the broken SANITAS system; maternity leave of three months with full pay flowed as of right. As custodian of records, the Respondent failed to rebut the arrears claim by producing payment records, so salary for three months was awarded at the established rate of Kshs33,000. One month's pay in lieu of notice followed the summary dismissal without notice. The underpayment declaration failed because no evidence of the prescribed salary scale was adduced.

Applying the Section 49 factors, the Court found the dismissal brutal, malicious and ill-timed, coming at the Claimant's hour of need, with terminal dues and a certificate of service withheld and no contribution by the Claimant to the dismissal; the parties did not desire re-engagement and the relationship was fatally fractured. The Court distinguished Section 49 compensation from general damages for unfair labour practices, grounded in Section 12 of the ELRC Act and Article 41(1) of the Constitution, fixing the latter at Kshs500,000.

Costs followed the event. The Claimant succeeded on the principal claims — the declaration, maximum compensation, maternity leave pay, salary arrears, notice pay and general damages — failing only on the discrimination and underpayment heads. The Court accordingly awarded costs of the cause to the Claimant and interest on all awards at court rates from the date of judgment until payment in full, subject only to statutory deductions on the award.