[2018] KEELRC 471 (KLR)
The court found that the Claimant was dismissed while on maternity leave, which constitutes an unfair labour practice under Sections 43 and 45 of the Employment Act. Although the Claimant failed to provide sufficient evidence for salary arrears and other monetary claims due to lack of supporting bank statements, the...
Source-derived case information.
- Citation
- [2018] KEELRC 471 (KLR)
- Parties
- Claimant: Alice Wangui Wambugu; Respondent: G.M. Kariuki Hardware Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 133 of 2018
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- judgment for the claimant in part
- Judges
- AN Makau
- Legal Topics
- Unfair Dismissal, Maternity Leave Rights, Discrimination, Compensation for Unlawful Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Wangui Wambugu
Claimant
G.M. Kariuki Hardware Limited
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether the dismissal of the Claimant while on maternity leave was unfair and unlawful.
- 2 Whether the Claimant is entitled to compensation and costs for unfair dismissal.
Ratio Decidendi
The court found that the Claimant was dismissed while on maternity leave, which constitutes an unfair labour practice under Sections 43 and 45 of the Employment Act. Although the Claimant failed to provide sufficient evidence for salary arrears and other monetary claims due to lack of supporting bank statements, the court held that the dismissal itself was unlawful and discriminatory. The court awarded the Claimant three months' salary as compensation for unfair dismissal and costs of the suit, emphasizing that dismissal during maternity leave is prohibited and attracts compensation even where other monetary claims are unproven.
Court Disposition
judgment for the claimant in part
Orders
- The Claimant is awarded Kshs. 144,900 as compensation for unfair dismissal (3 months salary).
- The Claimant is awarded costs of Kshs. 50,000.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
CASE NO. 133 OF 2018
ALICE WANGUI WAMBUGU.........................................CLAIMANT
VERSUS
G.M. KARIUKI HARDWARE LIMITED..................RESPONDENT
JUDGMENT
1. The Claimant was an accountant employed by the Respondent at its hardware shop in Nyeri. She was employed on 26th August 2015 and was dismissed on 11th September 2017. The letter stated that the dismissal was due to circumstances beyond its control. The Claimant averred the dismissal was unlawful and unfair as she was on maternity leave and was due to resume work on 16th October 2017. The claim was undefended despite the Respondent having been served with the suit papers and it proceeded as an undefended cause. She testified that the dismissal caught her by surprise and was totally unexpected. She claimed salary arrears computed as Kshs. 296,576/-, redundancy pay of Kshs. 39,246. 50 and severance pay of Kshs. 117,739. 50. She also sought costs of the suit.
2. The Claimant filed written submissions in which she submitted that the dismissal having not followed the provisions of Section 41, 43 and 45 of the Employment Act was unfair and unlawful. She submitted that the dismissal was discriminative as it was at a time she was on maternity leave. She relied on the cases of G M V vBank of Africa Limited [2013] eKLR, Yvonne Achitsa Odedere v Maseno University [2017] eKLRandClaudine Wanjiku Mboce v Exon Investments Limited & Another [2017] eKLRwhere the Claimants were dismissed while on maternity or ordinary leave which the courts termed as unfair labour practice.
3. The Claimant was dismissed while on leave. This was a classic example of unfair labour practice as defined by Onyango J. in the case of Yvonne Achitsa Odedere v Maseno University(supra). The Claimant however did not avail the bank statement for the period covering October 2017 or November 2017 to show there was no payment made after she was issued with the final dues calculation which dues included arrears and other emoluments she was entitled to. The Claimant therefore did not discharge her burden to prove she was entitled to the sums that she alleged were not paid and which formed the bulk of her claim. In absence of such proof there is no capacity to find in her favour for the sums. The only finding in her favour is that she was dismissed during leave, maternity leave for that matter which was unfair within the meaning of Section 43 and 45 of the Employment Act. She is therefore entitled to 3 months salary as compensation as well as costs of the suit which I asses at Kshs. 50,000/-.
4. In the final analysis I enter judgment for the Claimant for:-
a. Kshs. 144,900/- 3 months salary compensation
b. Costs of Kshs. 50,000/-
c. Interest on the sums above at court rates from date of judgment till payment in full.
It is so ordered.
Dated and delivered at Nyeri this 13th day of December 2018
Nzioki wa Makau
JUDGE