[2017] KEELRC 767 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE 1739 OF 2011

AGNES NTHENGE……….……….………………………..………..CLAIMANT

VERSUS

EXECUTIVE COMMITTEE

A.I.C. SENGANI D.C.C………………………………………….RESPONDENT

JUDGEMENT

1. By a memorandum of claim filed on 10th October, 2011 the claimant averred that she was employed by the respondent as a Pastor from May 1996 which was formalized by a written contract signed on 4th May, 2010. According to her, the employment was permanent and pensionable and tenable upto 65 years.

2. On 27th May, 2011 the respondent without any reason or justification and without any notice unlawfully terminated her services allegedly for inability to carry out her work due to ill health. The respondent through a memo of response filed on 25th November, 2011 denied the claimant was employed as a pastor. Concerning termination the respondent averred that the claimant was given adequate opportunity to defend herself before the termination was done.

3. The respondent further pleaded that sometime in October, 2014 to May, 2011 the claimant was entrusted with pastoral work in Sangani District Church Council where she on several occasions and without a medical doctor’s report claimed she was unwell. The respondent however paid her salary for seven months while she was not at work. The respondent further paid the claimant one month’s salary in lieu of notice.

4. In her oral evidence in court, the claimant testified that she worked without any problems or any warning letters. She further informed the court that after marriage she could not get a child for ten years but when she got one, her employer started to give her problems. She was transferred to another church away from her place, it was about twenty five kilometres. She reported to the new church but went to see the chairman to explain her challenge in reporting to the new station. According to her, the new station was far from the main road and that she had to walk through an open field which occasionally had wild animals. It was her wish to be transferred to a nearby church.

5. On 5th May, 2011 she was given a letter and asked to meet the pastors on 14th May, 2011. When she met the pastors she was pressed to request for unpaid leave but refused to do so. It was her evidence that upon her refusal, the pastors opened the door for her and asked her to leave the room. She went back home and never reported to the new station. On 21st May, 2011 she was called and asked to report to the new station and when she did she was issued with a termination letter. She did not sign for the letter. It was her evidence that she informed the respondent that she had gone to hospital and had an operation hence could not report to the new station. She denied staying away from work for seven months. She further denied receiving payment in lieu of notice. In cross-examination she denied that she refused to go on transfer and stated that she had been transferred previously.

6. The respondent’s witness Mr Simon Munyao informed the court that the claimant used to report to work infrequently. She was summoned and asked to explain why and she said she was unwell. She however did not produce any letter from a doctor. It was his evidence that the claimant’s new station was reachable and was a place she could work comfortably at. He further stated that there were coffee plantations but there were no wild animals. According to him the claimant was not a good worker hence the reason for her transfer.

7. Mr Munyao further informed the court that the pastor who was together with the claimant reported to the respondent that the claimant was not a good worker and insubordinate as she refused to answer to issues raised concerning her work. In cross-examination, he stated that he was a member of the executive and was not the chairman then. According to him, the chairman spoke to the claimant and that no meeting was summoned to discuss the claimant. He admitted that the respondent’s pastors were at the claimant’s new station not to discuss her but to discuss ordinary church work. It was his evidence that the complaint against the claimant was verbal. He further stated that the claimant did not produce any doctor’s letter to show she was unwell.

8. The claimant’s termination letter dated 27th May, 2011 stated that the claimant was paid full salary for seven months while at home due to poor health and after meeting her on 14th May, 2011, it was found that she was not able to resume duty. The claimant further attached in support of her claim discharge summary from Kangundo District Hospital and letters from doctors Dan Okoro and Odhiambo concerning her health. It therefore cannot be said that the claimant did not reasonably demonstrate that she was unwell.

9. The claimant informed the court that for sometime she had been unable to conceive a child but when she managed to do so her transfer came. It was further evidenced that when she became pregnant she started getting problems with the respondents. The respondent in its dismissal letter came to the conclusion that the claimant was unable to resume duty due to her health. The respondent did not attach any medical examination report on the claimant to show the nature of illness the claimant was suffering from which prevented her from carrying out her duties. The court can therefore presume that the claimant’s illness if at all was the case, was pregnancy related.

10. Section 46 of the Employment Act provides that a female employee’s pregnancy, or any reason connected with her pregnancy does not constitute a fair reason for dismissal or for imposition of a disciplinary penalty. It is evidently clear that the claimant was dismissed from employment on account of her pregnancy or related issue. This is prohibited by the Act and automatically qualifies as an unfair termination of employment. The court obviously frowns upon dismissal on account of pregnancy.

11. The court therefore finds the termination of claimant’s services on this account unfair and enters judgement against the respondent as follows:

Kshs.

a. One month salary in lieu of notice 5,300

b. Salary for May and June, 2011 10,600

c. Twelve months salary as compensation for unfair

termination of services 63,600

79,500

d. Costs of the suit

12. It is so ordered.

Dated at Nairobi this 17th day of March, 2017

Abuodha J. N.

Judge

Delivered this 17th of March, 2017

Abuodha J. N.

Judge

In the presence of:-

……………………………………………………………for the Claimant

…………………………………………………………….for the Respondent.

Abuodha J. N.

Judge