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IndustrialPartially AllowedCause 621 of 2012· [2012] KEIC 1 (KLR)

Machira v Mugo Waweru and Associates (Cause 621 of 2012) [2012] KEIC 1 (KLR)

Industrial Court of Kenya
9 November 2012
LNL NDOLO
2,041 words in judgment
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The bottom line

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A Kenyan employer must pay 12 months' salary for firing an employee on probation unfairly and denying maternity leave, which the court called discriminatory.

What this practically means

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Executive summary

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The Claimant, employed as an Auditor by the Respondent firm of advocates effective 15th March 2011 at a monthly salary of Kshs. 35,000, sued for unfair termination and terminal benefits after her services were ended in July 2011. She testified that her maternity leave application was refused by a partner, who asked her to apply for study leave instead, and that she was ejected from his office; she delivered her baby on 19th July 2011. The Respondent alleged poor performance, desertion of duty and misconduct, asserting she was still on probation and thus not entitled to maternity leave. The Court held that a performance appraisal must be participatory and documented; the partner's unilateral handwritten note extending probation did not constitute an appraisal, so the Claimant's appointment was confirmed by default on expiry of the two-month probation. The Respondent also failed to comply with Section 41 of the Employment Act's procedure for termination on grounds of misconduct or poor performance, rendering the termination unfair under Section 45. The Court found the refusal to approve maternity leave on probation grounds discriminatory under Section 46(a), holding that maternity leave has no waiting period or condition. The Claimant was awarded the equivalent of 12 months' gross salary as compensation, issued against the partners of Mugo Waweru and Associates jointly and severally, with costs to the Claimant. Claims for pay in lieu of notice and unpaid maternity leave were refused.

Key legal issues

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01

Justifiability of termination for poor performance

Holding

Termination for poor performance was unfair because no participatory performance appraisal was conducted and no opportunity to improve was given

Reasoning

The Respondent relied on a handwritten note by RW1 extending probation to six months. The Court held that a performance appraisal must involve the employee's active participation and be documented. The unilateral note did not constitute an appraisal, so the appointment was confirmed by default upon expiry of the two months' probation, and poor performance could not justify the termination.

p. 3
02

Procedural fairness in termination for misconduct

Holding

The termination was procedurally unfair as the employer did not comply with Section 41 of the Employment Act

Reasoning

Section 41 requires an employer to explain to the employee the reasons for considering termination and to hear and consider the employee's representations before termination on grounds of misconduct, poor performance or physical incapacity. Neither the documentary nor the viva voce evidence showed any compliance with these requirements, rendering the termination unfair within Section 45.

p. 3
03

Entitlement to maternity leave and discrimination

Holding

Refusal to approve maternity leave because the employee was on probation was discriminatory under Section 46(a) of the Employment Act

Reasoning

Section 29 of the Employment Act entitles a female employee to three months' maternity leave without imposing any waiting period or probationary condition. Instructing an employee in her final trimester to apply for study leave instead showed a misunderstanding of maternity leave's purpose, and the refusal on probation grounds was discriminatory on account of pregnancy.

p. 4

Legal principles established

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  • An employer bears the burden of proving the reason or reasons for termination; failure to do so renders the termination unfair within the meaning of Section 45 of the Employment Act
  • A credible performance appraisal process must be participatory; a supervisor's unilateral comments do not constitute an appraisal
  • Where an employer fails to extend probation through a valid appraisal, the employee's appointment is confirmed by default on expiry of the probation period
  • Maternity leave under Section 29 of the Employment Act has no waiting period and is not conditioned on confirmation or completion of probation; denial of it on account of pregnancy is discriminatory under Section 46(a)

Court orders

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  1. 1.Award of the equivalent of 12 months' salary based on the Claimant's last gross salary as compensation for unfair termination of employment
  2. 2.The award to be paid by the partners of Mugo Waweru and Associates jointly and severally
  3. 3.The Respondent to pay the costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 45(2)(c)
  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 29
  • Employment Act, 2007Section 46(a)
  • Constitution of Kenyareferenced generally in the Claimant's submissions

Cases cited (1)

  • Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) Vs Stanley Kinyanjui and Magnate Ventures Ltd
    Industrial Court Cause No. 273 of 2010
Jurisdiction invoked
Jurisdiction of the Industrial Court over employment and labour relations disputes (Cause filed under the Industrial Court's jurisdiction over unfair termination claims under the Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Machira v Mugo Waweru and Associates (Cause 621 of 2012) [2012] KEIC 1 (KLR)", Case Analysis (2012). Cause 621 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2012/1/eng@2012-11-09

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