Cornelia Snel v The Board of Management of the Lycee Francais Denis Diderot (Board - The French School of Nairobi)

f) Certificate of Service. g) Costs of this suit. h) Interest in (b) and (g) at court rates from the time of filing suit until payment in full. i) Any other further or better relief the Honourable Court may deem just and fit to grant. 2. The Claimant’s claim was accompanied by her list of witnesses dated 12th May 2020; witness statement of the same date; and list of documents of the same date, with the bundle attached. 3. In response to the claim, the Respondent entered an appearance through the law firm of Oraro & Company Advocates and filed a memorandum of reply dated 1st February 2021. In support of their response, the Respondent filed a list of witnesses dated 1st February 2021; a witness statement of DAVID DOLEDEC dated 29th January 2021; and a list and bundle of documents dated 1st February 2021. Hearing and evidence 4. The Claimant’s case was heard on the 12th June 2024 where she gave sworn testimony. adopted her witness statement dated 20th May 2025 and produced her list of documents dated 22nd September 2023. She was cross-examined by counsel for the Respondent on 2nd April 2025 and on 9th July 2025. 5. The Respondent’s case was heard on 9th July 2025, when David Dolede C. gave evidence as RW1. He was the chairman of the board at the time of termination. JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 2 | 27

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He adopted his witness statement dated 1st February 2021 as his evidence in chief. He was cross-examined by counsel for the Claimant, and on reexamination the defence case was closed. The Claimant’s case in summary 6. The Claimant was employed by the Respondent vide a letter dated 1 st November 1999 to the position of Headmaster's Secretary with effect from the contract date until 5th December 2019 when her employment was terminated. At the time of termination, the Claimant states that she served as Human Resource CoOrdinator and earned a salary of 2,393.72 Euros per month. For the duration of her employment, the Claimant states that she worked diligently, amassing stellar appraisals. 7. It is averred that the Claimant’s troubles began on 13 th January 2018 when she suffered a severe pulmonary embolism that caused her to be hospitalised under intensive care. Thereafter, she was discharged from the hospital on 20th January 2018, but remained absent from her place of work until 21st June 2018, when she resumed work at 80% capacity, with the knowledge and consent of the Respondent, due to the general fatigue and fragility that affected her. 8. The Respondent advertised the position of Human Resource Coordinator in April 2019. Following her application, the Claimant was shortlisted and interviewed, but was not appointed. The successful candidate was dismissed from employment after a few months, after which the Respondent’s then Headmaster offered the Claimant the position around 18th October 2019. The Claimant accepted the offer of employment to the Human Resource Coordinator position JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 3 | 27

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verbally, on condition that she be provided with job security for the duration of a loan facility she had taken, that is, for five (5) years. The parties agreed that her old employment contract would be varied to capture the Claimant’s new salary scale and the tenure of her employment, but the other terms and conditions of employment would be maintained. The Claimant’s appointment to the position of Human Resource Coordinator was discussed by the Board and approved at its meeting of 12th November 2019, and confirmed by the headmaster in his email sent on 5th November 2019, where he wrote: “I would like to inform you that Ms. Kimani has been dismissed from her position as HR Co-ordinator effective Monday, November 4, 2019. For any questions regarding human resources, please contact the Executive Secretariat”. The Executive Secretariat referred to the Claimant at the time. 9. The Claimant states that she assumed the duties of the HR Coordinator on 5 th November 2019, and on 6th November 2019, the Respondent communicated via email to its Managers and its high-ranking staff and copied the Claimant, assigning managerial tasks by department for the year, with about 80% of the tasks assigned to the Human Resource Co-ordinator. 10. The Claimant complains that in her new position, she was not issued with a contract of employment, or a job description outlining her new duties and responsibilities. Further, the Claimant states that her salary was not properly adjusted taking into account the duties and responsibilities of a human resource coordinator. According to her, she should have received a salary in category H of the scale, of at least step 7 (with 13 and a half to 16 and a half years of JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 4 | 27

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seniority), this being the salary of an Administrative Officer of the Respondent, namely 3,072.76 Euros. This would be in line with Article 6 of her contract of employment dated 21st May 2003, which provided that the gross salary paid monthly was fixed in accordance with the scale of remuneration established by the employer according to the category to which the person belongs and "that salary varies at the rate according to the criteria fixed by the scale of remuneration in which the contracting party is classified". The Claimant, however, continued receiving the monthly salary of a Headmaster’s Secretary. The Claimant also complains that as a Headmaster's Secretary she was a member of KUDHEIHA, but the Union was not consulted prior to the variation of the Claimant’s contract of employment. 11. While performing her new duties, it is stated that the Claimant discovered that there was a serious breach of data privacy by the Respondent's Financial Director. She immediately informed the headmaster, who instructed the Claimant to raise the issue at the staff meeting. After the staff meeting, the Claimant received an email from the Respondent's Chairman, chastising her for raising the issue during the meeting and stating that this issue was not within the role of the Human Resource Co-ordinator. The Financial Director, who was in breach of data privacy, eventually resigned on 18th November 2019. 12. Following the above incident, the Claimant sought clarification from the Headmaster on her duties and responsibilities as HR Co-ordinator, and requested to be reinstated to the position of Headmaster's Secretary if her duties and responsibilities would not be defined. The Headmaster indicated that the Headmaster’s Secretary position has already been substantively filled. JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 5 | 27

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13. On 19th November 2019 the Claimant requested a meeting with the Headmaster and the Respondent's Chairman for purposes of defining the terms of her employment as the HR Coordinator, and she reiterated that she was open to returning to her previous position. The Claimant states that she was informed that she would be given an answer soon, and urged to continue performing the duties of the HR Co-ordinator in the meantime. On 25 th November 2019, the Claimant wrote a follow-up letter to the Respondent’s Headmaster and Chairman, but did not receive a response. 14. The Claimant contended that another issue touching on Human Resource matters arose in December 2019, when one of the recently promoted staff who had recently lost his wife was dismissed from employment without compensation, and without consulting the claimant as the HR Coordinator, on grounds that he had been issued with a new contract with a probation period. The Claimant states that she objected to the said dismissal to the Headmaster on the premise that the employee's contract had only been amended to capture his new position, but did not impose a probationary period. 15. It is averred that the Claimant wrote to the Respondent’s Headmaster and Chairman on 2nd December 2019, again requesting to be returned to her former position, as they had not responded to her letter of 25th November 2019. She received a response on the same day from the Respondent's Chairman, indicating that the Claimant’s contract of employment contained clauses detrimental to the Respondent and that the Respondent school was therefore unable to honour her promotion if it came with the same terms. The email JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 6 | 27

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proposed that the highlighted clauses be removed and indicated that, if she was not amenable to their removal, the parties would have to discuss the possibility of redundancy. Following this email, the Claimant was requested to attend a meeting on 3rd December 2019 alongside a staff representative, where she was advised that, if she accepted the Human Resource position, she would be offered a new contract of employment subject to a 3-month probation period, and that the fringe benefits in her former contract of employment would be excluded, specifically fully paid school fees for her children who attended the Respondent's school and service pay. No indication was given regarding the review of the Claimant’s salary, her working hours, or her duties. The Claimant states that the new terms of employment were unfavourable to her, as there was no security of tenure. 16. It is the Claimant’s case that the Respondent had no intention of returning her to her former position permanently, which is why they only provided her with the option of accepting to be declared redundant. The Claimant states that she was directed to acknowledge receipt of a letter granting her three months’ notice, but she requested to remain in employment only until 18 th December 2019. She was then directed to submit a proposal for payment of her terminal dues, and she reluctantly calculated the same with the help of the Respondent’s Accountant and sent it to the Respondent’s Headmaster. A counterproposal was returned to the Claimant by the Respondent’s Chairman on 5th December 2019, and on the same day she was summoned to the Chairman’s office, where she found another Board member and was forced to sign a letter accepting the proposal under extreme duress and pressure. When she requested time to consider the counterJUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 7 | 27

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proposal, she was firmly told “It is not later, it is now or never, just sign.” The Claimant emphasizes that since she was cornered by two men and scared to death, she signed two copies of the letter. Thereafter, she was provided with one counterpart of the letter, and directed the other Board member to escort her out. After leaving the Chairman’s office, a third Board member joined them; she was escorted to her desk and ordered to clear her desk and take her belongings, and her personal notebook was forcefully taken away. She was then accompanied up to the gate by one of the Board members, who carried all her personal belongings, and had to wait for security clearance from the Security Officer. The Claimant complains that some of her colleagues and students witnessed her forced removal from the Respondent’s premises as it occurred during lunch break and most of them were in the recreational ground that she had to go through, causing her great emotional distress and humiliation. That her 13-yearold daughter, who also attended the same school, was left humiliated and distressed when she was informed that her mother had been terminated from employment. 17. Following her termination from employment, the Claimant states that she continued to receive emails from the Respondent for about a month thereafter, including one email communicating the contents of the letter she had been forced to sign to the other members of staff, despite requesting that the Headmaster remove her from the staff mailing list. 18. After the Claimant’s fellow teachers downed their tools and sought an explanation regarding the Claimant’s treatment, and the French Teachers’ Union also sought an explanation, it is averred that the Respondent’s Headmaster JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 8 | 27

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reiterated that the Claimant had wished to terminate her contract of employment and that she was not escorted out. 19. The Claimant states that her treatment at the hands of the Respondent’s Headmaster was not an isolated incident, as he had on various occasions disregarded employment laws. On 7th November 2019, the Claimant raised concerns about the Headmaster issuing warning letters to the wrong staff and terminating employment without justification. The Claimant was, however, instructed to proceed and issue the warning letters to the listed staff anyway. Further, the Claimant states that she was instructed to register a SIM card in her name, the purpose of which would be to facilitate the Respondent's transactions on online sites such as KRA’s Itax services and E-citizen. She respectfully declined and informed the Headmaster that the SIM card ought to be registered in the Respondent's own name. 20. The Claimant faults the Respondent for jeopardising the repayment of a loan facility that she took from Bank of Africa Kenya Ltd of 60,000.00 Euros plus interest, relying on her security of tenure in employment. She emphasises that the Respondent was aware of the facility, as evidenced by a letter of undertaking provided to the Bank on her behalf on 18 th March 2019. At the time of termination of employment, she had a balance of 72,628.01 Euros with the facility and is struggling to repay it. Further, the regularisation of the immigration status of the Claimant and her family was rendered difficult due to her unlawful termination from employment, and the Respondent’s dubious tax dealings. JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 9 | 27

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21. It is averred that the Respondent’s conduct in promoting the Claimant to the position of HR-Co-ordinator was a ploy to get rid of her because of her seniority at the school, to avoid the fringe benefits provided under her employment contract, compared with those of newer staff, or because she had highlighted the unlawful actions of the Respondent’s Headmaster, who was appointed in September 2019. The Claimant argues that there was no genuine redundancy situation at the Respondent School; there were no conclusive consultations before the purported redundancy; there was no genuine attempt to resolve the artificial redundancy situation created by the Respondent; and there was no notice or informed process prior to the termination of her employment. In addition to the foregoing, the Claimant avers that her service pay was wrongfully calculated with the Respondent not only using an improper salary scale, but also deducting 20% from her basic salary, and failing to factor in her house allowance. She emphasises that her forced redundancy was unlawful, irregular, premature, and without justification, and was effected without any consideration of her contract, seniority, goodwill, excellent appraisals, working competencies, and tenure, and violated Article 41 of the Constitution on fair labour practices. The Respondent’s case in brief 22. The Respondent admits that they engaged the Claimant by letter dated 1st November 1999 in the position of Management Secretary. She was subsequently issued with an employment contract dated 1st September 2002 for the position of Headmaster Assistant, which she held until her termination under a mutual separation agreement. JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 10 | 27

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23. It is further admitted that the position of Human Resource Coordinator fell vacant in November 2019 following the resignation of the previous office holder. The Board of the School immediately thereafter carried out a restructuring of its administrative positions, which resulted in the abolition of the position of Human Resource Coordinator and the creation of the Human Resource Assistant and Director Assistant positions, and in the maintenance of only one position of secretary to the headmaster. The changes were communicated to the Claimant and other staff. 24. The Claimant expressed interest in the newly created position of Human Resource Assistant, while another employee took up the position of Director Assistant. In respect of the Human Resource Assistant position, the Respondent entered into discussions with the Claimant regarding a new contract for that position, but these discussions were never concluded and no contract was signed. Further, the Respondent denies entering into a verbal agreement with the Claimant that her contract would be amended to include a provision that the Respondent would provide job security for five (5) years and possibly reinstate the Claimant to her old position should she fail to qualify for the Human Resource Assistant position after the probation period. 25. It is averred that in November 2019, the Respondent's Finance Director at the time breached certain data privacy protocols, and the Respondent immediately commenced investigations into the breach. However, while this was ongoing, the Claimant, of her own volition and without permission from her superior, sent an email to the Respondent castigating the board about the incident and causing JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 11 | 27

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panic amongst staff and parents. The Claimant subsequently engaged in peddling rumours to the Respondent's staff members that the school had failed to procure work permits for the foreign staff members and that arrests by the Government were imminent, causing uproar and panic among the staff members and resulting in the departure of two critical teachers, which affected the school's working environment. The Claimant was warned about her improper conduct and informed that her conduct lacked authority and was unprofessional. 26. While the Respondent concedes that it received the letter dated 25th November 2019 from the Claimant inquiring about the new terms to be included in her contract for the position of Human Resource Assistant, it informed her that a new contract would have to be discussed and prepared before its execution by both parties, and that the Respondent’s Board was required to approve her appointment to the subject position. Upon being informed that there would be minimal changes to her terms of employment after appointment to the Human Resource Assistant position, the Claimant, on 3rd December 2019, dissatisfied with the terms offered, rejected the position of Human Resource Assistant and demanded payment of her dues and release from her employment by the Respondent. 27. It is stated that the Claimant voluntarily agreed to sign a mutual separation agreement upon payment of all her dues. The Respondent denies that the Claimant was forced, coerced or compelled by threats or intimidation to sign any document. Although a board member was requested to be present as a witness, the Claimant denies ever being scared during the meeting. The Respondent emphasises that the Claimant was treated fairly and amicably during her JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 12 | 27

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employment up until her mutual separation from the Respondent. After the separation, the Respondent states that it paid the Claimant all her dues, namely: basic salary of 1,914.98 EUR x 20 = 38,299.6 EUR; pension fund of 522.21 EUR; 20% of last monthly salary for each completed year of service, with a limit of 5000; and 3 months’ pay in lieu of notice of 6652.44 EUR, making a total of 50,474.25 EUR. It insists that the Claimant's employment was fairly and lawfully terminated by way of a mutual separation agreement. Issues for determination 28. The court, on perusal of the proceedings and the unagreed issues by the parties, was of the considered opinion that the issues placed before the court for determination were as followsa) Whether the Respondent unfairly terminated the Claimant’s employment? b) What reliefs is the Claimant entitled to? The law 29. Section 47(5) of the Employment Act provides for the manner of proving employment claims as follows‘47(5)For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds for the termination of employment or wrongful dismissal shall rest on the employer.’ 30. The burden of proof is that of balance of probabilities. JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 13 | 27

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31. The fairness of termination is as stated in section 45(2) of the Employment Act to wit ‘A termination of employment by an employer is unfair if the employer fails to prove— (a)that the reason for the termination is valid; (b)that the reason for the termination is a fair reason— (i)related to the employees conduct, capacity or compatibility; or (ii)based on the operational requirements of the employer; and (c)that the employment was terminated in accordance with fair procedure.’ Whether the Respondent unfairly terminated the Claimant’s employment? 32. The Claimant in the instant case asserted she was dismissed from employment. She submitted as follows: It is not in dispute that the Respondent wanted the Claimant to occupy the position of HR assistant following the restructure and the events that followed are: a. The Claimant wrote to the Respondent on 25-11-2019 (page 59 of the Claimant’s bundle) requesting to know the specific terms of employment before she accepted the proposal given to her including but not limited to; i. Whether the proposal is subject to an addendum of the current contract with all current clauses remaining valid; ii. If a probation period shall be implemented; iii. Salary proposal and salary grid; iv. Options if proposal found unsatisfactory; JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 14 | 27

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b. The Respondent replied on 26-11-2019 (page 60 of the Claimant’s Bundle) requesting the Claimant to forward her current contract. c. Following non-response, the claimant wrote an email on 02-12-2019 (page 62 of the Claimant’s bundle) requesting to reoccupy here previous position as the principal’s assistant. d. The Respondent responded on the same day 02-12-2019 (page 63 of the Claimant’s bundle) informing the claimant that her contract is disfavourable to the Respondent and cannot be continued in a new contract. That the only option would be for a completely new contract that would not contain the same sections, particularly sections 8.1 and 8.2.2. It capped off by stating, “…I understand that this ay not allow you to accept our proposition and in that case we would be willing to discuss with you the term of your employment at LFDD.” e. The Respondent on 03-12-2019 (page 66 of the Claimant’s bundle) wrote to the Claimant giving her three months’ notice before expiry of the contract and informed her that the end date is 03-03-2020. f. The Respondent on 05-12-2019 (page 68 of the Claimant’s bundle) again wrote to the Claimant informing her that the three months’ notice could be shortened and the new end date is 05-12-2019. g. The Claimant was escorted out of the Respondent’s premises immediately on the same day. h. We invite this Honourable Court to look at the Respondent’s Board Minutes of 12-11-2019 (page 7 of the Respondent’s List and Bundle of Documents where the principal observes in the last sentence of that page that the goal is not to fire people. The Claimant submits that it is trite law that the terms of employment cannot be changed to the detriment of the employee unless the employees signify their consent. JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 15 | 27

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33. The claimant further submitted that it is an unfair labour practice to terminate her employment on account of redundancy because she refused to accept new terms of employment which were to her detriment. Further, the shortening of the notice period from 03-03-2020 to 05-12-2019 is an ambush and an unfair labour practice. 34. The Respondent, in its defence, alleged the existence of a mutual separation agreement, which is reiterated at paragraph 17 of the Respondent’s Witness statement of David Doledec. In that paragraph, he states, “Attached hereto and marked “FS9” is a copy of the separation agreement.” The Claimant asserts that a document with this title has not been produced before this Honourable Court, as that annexure is missing. If the Respondents want to find refuge in the letters dated 03-12-2019 and 05-12-2019, the Claimant, during cross-examination, was categorical that she signed them to acknowledge receipt. Further, the language in those letters does not amount to an agreement but rather to notifications of the Respondent's decisions regarding the Claimant's employment. The Claimant’s evidence is that she was cornered by two men in the Headmaster’s office and after the Headmaster put a pen in her hand, he firmly told her “It’s not later, it is now or never, just sign!...”. It is submitted that the Respondent abused its dominant position and reliance is placed in the case of PAULINE WANGECI WARUI V SAFARICOM LIMITED [2020] KEELRC 1497 (KLR) the court held as follows; “The totality of the above set of facts negates an atmosphere of free and unpressurised negotiations within the meaning of Sandhu v Jan De Rijik Transport Ltd [2007] EWCA Civ 430 (10 May 2007), where the Court of Appeal of JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 16 | 27

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England and Wales in a similar case had this to say – ‘[51] …The appellant was being dismissed. In my judgment it simply cannot be argued that he was negotiating freely. He had no warning that the purpose of the 6 December meeting was to dismiss him; he had no advice, no time to reflect. In my judgment, he was doing his best on his own to salvage what he could from the inevitable fact that he was going to be dismissed. This, in my judgment, is the very antithesis of free, unpressurised negotiations.’ The respondent blatantly abused and took advantage of its dominant financial position to flex its muscle on its employee to coerce an exit. This was abhorred in Sandhu's case as follows; ‘[64] Employers of the size of the respondent should not be encouraged to behave as the respondent has done, nor should they think that proper procedures for disciplining or dismissing the employees are unnecessary ... and that an employer should not be able to use its dominant position to exploit its employees position.’ "The claimant testified in her case as only witness. 35. Conversely, the respondent called one witness, its board chairman. The Respondent submitted as follows: The Claimant was not dismissed from her employment as envisaged in sections 40-45 of the Employment Act, 2007. There was no disciplinary action or a redundancy declared on the position held by the Claimant. Instead, the Claimant and the Respondent mutually agreed to end their employer-employee relationship due to the events elucidated in the brief background above. It is therefore most surprising to the Respondent that the Claimant has turned to file a claim for unfair termination, yet even her own staff representative understood that the Claimant “resigned in good faith”, which is an indication that there were discussions between the Claimant and the Respondent JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 17 | 27

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which resulted in a termination of the contract in good faith. The email evidencing this is on page 75 of the Claimant’s Supplementary Bundle of Documents. This email is an English translation done by the Claimant herself, where she starts her communication to her Advocate on record, Mr Richard Malebe, by saying: “Richard, Please see if you want to include this one too: here is a rough translation:” The translated email is one emanating from the Claimant’s staff union addressed to the Respondent wherein the union expressly describes the termination of the Claimant's contract as one done in good faith: “…And where do the members of the Management Committee who thus escorted Ms. Snel Lieven derive their powers to treat in this way an employee WHO RESIGNED IN GOOD FAITH?”. 36. The Respondent contended that, without delay and specifically within 5 days of the termination of the contract, the Respondent remitted payment of the exit package as agreed to the Claimant, who accepted it. The Respondent implored the Court to find that the separation between the Claimant and the Respondent was not acrimonious, as the Claimant would have this Court believe, and although the Respondent was unable to retrieve and produce the said mutual separation agreement, the Court should infer mutual separation from the aforementioned email communication. The Respondent relied on the decision in Mwenda v Afri Business LLP & another (Cause E409 of 2020) [2024] KEELRC 2346 (KLR), where this Court agreed that, although no mutual separation agreement was produced before the Court, the conduct between the parties inferred that the termination of the employment relationship was not acrimonious: “From the evidence on record, the Court is not persuaded that the JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 18 | 27

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separation was accrimonious and may have been mutual as contended by the Respondent, which would explain the Claimant’s acceptance of part payment of Kshs.55,000.00 and the only sum outstanding is Kshs.168,740.00 which the Respondent has taken too long to pay and it is merited.” 37. The Respondent submitted that the Claimant’s allegations of harassment and coercion are unfounded and an attempt to garner sympathy from this Court. In her testimony and documents, the Claimant told this Court that there were several eyewitnesses to the alleged coercion to sign the mutual separation agreement and the letters of the 3rd and 5th December 2019, as well as several eyewitnesses to the alleged harassment and public embarrassment. Yet the Claimant has failed to provide even one eyewitness to corroborate her account of events. It is conceded that the Claimant, upon her exit, was accompanied by one board member. Having completed her clearance process, she did not have a key card that would give her access to exit the premises. The purpose of being accompanied by the board member was therefore to ensure she had a smooth exit from the school grounds. Decision on Issue No.1 38. On perusal of the proceedings, I established that it was not in dispute that the claimant had been promoted to the position of coordinator of human resources following the re-organisation, a position for which she had earlier applied for but not taken. When a vacancy arose, she was promoted to the position voluntarily. The claimant appeared to have changed her mind upon comparing the terms offered for the new position with those of her previous position, for which she JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 19 | 27

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had served for almost 20 years. The claimant was initially employed vide contract dated 14th February 2003 as Headmaster Assistant. (C-exh 1 and exh2 being the original contract in French. The contract was open-ended. The letter of 3rd December 2019 in French and a translation offered in English stated that the claimant had a meeting on 3rd December 2029 with the headmaster in the presence of the president of the board, David and her staff representative, Sarah, where the claimant affirmed her refusal to accept the position of coordinator of human resources, for which she had applied and which had been proposed to her following the reorganization of the services. It was then indicated that, following the refusal of the position, compensation was available as per clause 8.2.2 of her employment contract. (page 66 of the claimant’s documents). 39. A further letter dated 5th December 2019 , a follow-up of the letter of 3rd December 2019, reduced the 3-month notice period. The claimant signed all the letters but said it was not an indication of acceptance of the terms. 40. The claimant further asserted she was coerced to sign the agreement on the terms of exit. The agreement was not produced before the court, but the court established it existed as both parties referred to it. On perusal of the material before the court, the court did not believe that the claimant was coerced into signing the separation document. It was evidence she had a staff representative, Sarah, at a meeting held on 3rd December 2019. The claimant alleged that she was coerced by the chairman and the headmaster to sign the agreement on 5th December 2019 at 12.17 pm, and that there were witnesses. JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 20 | 27

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She did not call any witness in her case to corroborate her allegation of coercion. The court cautioned itself on the danger of a single witness. 41. The court referred to an email said to be by the French union (page 75 of the claimant’s documents.) The author questioned manner of removal from office and at same time indicated the claimant resigned in good faith. The claimant consulted the accountant to draw her exit offer. The respondent had given a counteroffer. In the totality of the evidence before the court, I find that it is more probable than not that the claimant resigned voluntarily from work and that there was no proof of coercion in signing the separation agreement. The burden was on the claimant to place evidence before the court to substantiate the unfair termination, after which the burden passed to the employer to justify the termination (section 47(2)). 42. The court was persuaded by the authority relied on by the respondent in Mwenda v Afri Business LLP & another (Cause E409 of 2020) [2024] KEELRC 2346 (KLR) where the Court agreed that although no mutual separation agreement was produced before the Court, the conduct between the parties inferred that the termination of the employment relationship was not acrimonious:“From the evidence on record, the Court is not persuaded that the separation was accrimonious and may have been mutual as contended by the Respondent, which would explain the Claimant’s acceptance of part payment of Kshs.55,000.00 and the only sum outstanding is Kshs.168,740.00 which the Respondent has taken too long to pay and it is merited.” JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 21 | 27

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43. In the instant case, post the meeting of 3rd December 2019 where the claimant attended with a staff representative, she proceeded to make a proposal on her exit; the employer gave a counter proposal and an agreement was signed. There was no proof of coercion to sign the separation agreement, and though the agreement was not before the court, both parties admitted to its existence. I find no proof of unfair termination on a balance of probabilities. Remedies 44. The claimant sought the following relief - a) A declaration that the Claimant’s services were wrongfully and unfairly terminated and in the circumstances the Claimant is entitled to compensation of her terminal dues as outlined above. b) The sum of 145,287.46 Euros as set out above. c) Pay all taxes on the amounts awarded. d) To pay all amounts shown in their respective currency. e) General damages for non-issuance of a certificate of service. f) Certificate of Service. g) Costs of this suit. h) Interest in (b) and (g) at court rates from the time of filing suit until payment in full. i) Any other further or better relief the Honourable Court may deem just and fit to grant. JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 22 | 27

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45. On payable salary, I find the payslip produced for August 2018 indicated a basic salary of 2301.66 euros and allocation logement (housing 302.50 euros). The employer calculated her dues using a figure of 1914.98 euros (paragraph 22 of RW1 witness statement). The respondent submitted as follows- The foregoing is relevant because the Claimant in her own testimony confirms that she suffered a pulmonary embolism which caused her to be away from work for 6 months. When she returned to work, she could only do so at 80% capacity/work ratio and made this request to Respondent. The Respondent accepted on the terms that her income would be reduced to the same 80% ratio and this was acceptable to the Claimant and her monthly salary was reduced to 80% from 21st June 2018.’ (Reference is made to paragraph 4 of the Claimant’s Witness Statement). This meant that her working hours reduced from 39 hours (full-time) per week to 31.2 hours per week reducing her base salary from 2,301.66 Euros to 1,914.98 Euros. (Reference is made to page 35 of the Claimant’s Bundle of Documents). This Payslip headed as “Fiche de paye du 01 au 30 novembre 2019” evinces the Claimant’s reduced working hours-pay ratio where the hours are 31.2 hours out of the total 39 hours and the equally reduced pay based on the same ratio. Based on the foregoing, the Claimant’s base salary as at the date of termination was 1,914.98 Euros. 46. At page 14 of the respondent‘s supplementary documents was the tabulation of payment of termination dues ‘our final settlement is as follows: - Basic salary x 20, amounting to 1914.98 € (Bonuses and allowances are not included in the calculations (Retirement October to December) (renewal of contributions in October 2019), amounting to JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 23 | 27

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522.21 € (payment from if exit is in December 5000 Severance €), amounting pay (20% of the last monthly salary multiplied by the number of years worked up to 5,000 €. 3 months' notice at 2217.48 €*3=6652.44 The Total is 50 474.25 €’ 47. The above amount was paid as evidenced by the bank transfer at pages 16 and 17 of the respondent’s bundle of documents. 48. The claimant seeks severance pay at the rate of gross salary. The claimant contests the manner in which her severance pay was calculated, as set out in the email dated 05-12-2019 (page 14 of the Respondent’s Supplementary List and Bundle of Documents). That email provides that house allowance is not included in the calculation of severance pay. The claimant contended that the employer's tabulation of terminal dues was contrary to a plethora of decisions holding that house allowance should be included in the calculation of gross salary. Reliance is placed on the Court of Appeal case of POSTAL CORPORATION OF KENYA V TANUI (Civil Appeal 127 of 2015) [2019] KECA 489 (KLR) (19 July 2019) (Judgment), where it was held that: “Gross salary would then be the amount calculated by adding up one's basic salary and allowances, before deduction of taxes and other deductions. Each case must be examined to identify the nature of the allowances given and whether they form part of the gross salary. We affirm the construction made by Ongaya, J. in the Banking, Insurance & Finance Union case (supra). We are not persuaded by the appellant's argument that 'gross wages' or 'gross salary' does not include any allowances and that it is the same as the 'basic salary' or 'basic wages'.” JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 24 | 27

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49. The claimant relied on clause 8.2.2 of the contract regarding severance pay. The clause provided for payment of 1 month's salary. I find the respondent ought to have included the house allowance in the tabulation. On the applicable salary, I find that the applicable salary is the full salary for the period worked. The court finds it unfair to use a salary outside the contract salary. The court finds that the correct salary is the contract salary of 2301.66 euros, plus allocation logement (housing 302.50 euros), thus a gross salary of 2604.16 euros (see pay slip at page 39 of the claimant’s bundle). 50. The court, for the foregoing reasons, finds that the terminal dues were underpaid in respect of severance pay and notice. The claimant relied on a figure not supported by the payslip produced. The court then recalculates the payable terminal dues as follows: 3 x 2604.16 (7812.48) plus 20 x 2604.16 (52,083.20) euros, plus the gratuity of 5000 euros, less 50474.25 (paid), for a total underpayment of terminal dues of 9421.43 euros. 51. On claim for payment of loan, I find the claim to be outside the province of the Employment Act. The loan was for personal benefit of the claimant as employee. The court has no basis to load the same on the employee. Continued employment is not a right of the employee. 52. On general damages sought for certificate of service, the court finds it lacks jurisdiction to make the award as it is outside the provisions of the Employment Act. JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 25 | 27

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53. In the upshot, the Claim succeeds on terminal dues, which the court held the claimant was unpaid terminal dues by Euros 9,421.43. Certificate of service to issue under section 51 of the Employment Act. Disposition 54. Judgment is entered for the claimant against the respondent as followsa. The termination is held as fair as it was voluntary. b. The respondent is ordered to pay the claimant an underpayment of terminal dues in the amount of Euros 9421.43. c. To pay costs and interest to the claimant. d. Certificate of service to issue under section 51 of the Employment Act through the claimant’s advocate’s office within 30 days. 55. Stay of 30 days. 56. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 25 TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Claimant: Maleme Respondent: Mrs Oliwa JUDGMENT IN NAIROBI ELRC CAUSE NO. 282 OF 2020 P a g e 26 | 27

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