[2012] KEHC 39 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Cause 621 of 2012 [if gte mso 9]><xml>

14. 00

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JANE WAIRIMU MACHIRA................................................................CLAIMANT

VS

MUGO WAWERU AND ASSOCIATES........................................RESPONDENT

AWARD

The Claimant's claim in this case is for unfair termination of employment and failure to pay terminal benefits. The Claimant initially appeared in person but Mr. Lempaa came on record for her at the hearing of the Respondent's case. Mr. Wathuta appeared for the Respondent. The Claimant and the Respondent's witness Mwangi Mukururi gave sworn evidence. At the end of the trial, the Claimant filed written submissions but the Respondent did not file any submissions despite adequate opportunity given by the Court for them to do so.

The facts of this case are that by letter of offer dated 24th February 2011 (marked “JWM 4” in the Claimant's bundle of documents) the Respondent employed the Claimant in the position of Auditor effective 15th March 2011 at a monthly salary of Kshs. 35,000. The Claimant's appointment was subject to a 2 months' probation period. The Claimant worked for the Respondent up to July 2011 when her services were terminated.

According to the Claimant, she served the Respondent with diligence and loyalty but the Respondent terminated her services when she applied for maternity leave. The Claimant told the Court that she submitted her maternity leave application form to Mr. Mukururi, a Partner at the Respondent. The Claimant added that the said Mr Mukururi declined to approve her maternity leave and instead asked her to apply for study leave

The Claimant's claim was tabulated as follows:

a)Pay in lieu of notice..............................................................................Kshs. 70,800

b)unpaid maternity leave..................................................................................105,000

c)Compensation for unfair termination...........................................................420,000

According to the Respondent's Reply, the Claimant was offered and she accepted employment in the position of Auditor commencing on 15th March 2011 subject to successful completion of probationary service (Letter of offer is marked “MW1” in the Respondent's documents). The Respondent also stated that the Claimant's performance was very poor and that within the first month of her employment, a performance review had been carried out at which the Claimant admitted that she had indeed underperformed. A further performance review was conducted on 10th May 2011 at which it was agreed between the Claimant and the Respondent that the Claimant's probation would be extended up to 6 months.

The Respondent went on to state that on 18th July 2011, the Claimant threw a maternity leave application form at one of the Partners of the Respondent and uttered words to the effect that she “did not care any more” after which she left and had not reported back to work since. On the basis of the Claimant's action and poor performance, the Respondent issued a written notice of the Respondent's intention to terminate the Claimant's employment contract (a copy of the notice is marked “MW2”in the Respondent's documents). The Respondent 's position was that the Claimant was not entitled to pay in lieu of notice as she had absconded duty neither was she entitled to maternity leave because at the time she applied for maternity leave, she was still on probation.

In her evidence in chief, the Claimant stated that when she pursued the issue of her maternity leave with Mr. Mukururi he ejected her out of his office. Subsequently, she was confined at the Nairobi Women's Hospital on 18th July 2011 and delivered her baby on 19th July 2011. She also stated that at no time was a review of her performance ever undertaken nor did she agree to extension of her probation. She further told the Court that her supervisor was not Mr. Mukururi but the second Partner, Mr. Wainaina.

In his evidence in chief, Mr. Mukururi (RW1) produced a bundle marked Appendix 4 which contained inter alia audit notes on two accounts handled by the Claimant. He referred to some negative comments on the Claimant's work to show that the Claimant's performance had indeed been poor.

The first question before me is whether or not the Claimant's termination of employment by the Respondent was justifiable. In the Claimant's written submissions filed by AL Karui and Company Advocates on 3rd September 2012, reference was made to the Constitution, statute law and case law. Specifically, the Claimant referred to Section 43(1) of the Employment Act, 2007 which sets out the burden of proof for unfair termination as follows:

(43)(1) In any claim arising out of termination of a contract , the employer shall be required to prove the reason or reasons for the termination and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45

Section 45 (2) (c) provides that:

A termination of employment by an employer is unfair if the employer fails to prove-

(a)…...............................................................

(b)....................................................................

(c) That the employment was terminated in accordance with fair procedure

In the Respondent's pleadings as well as in the sworn evidence of RW1, the Respondent gave the reasons for termination of the Claimant's employment as poor performance, desertion of duty and misconduct. I will consider each of these reasons sequentially.

On the issue of poor performance, the Respondent averred that the Claimant's performance was very poor. As a result, the Respondent had to extend the Claimant's probation for up to 6 months. To support this position, the Respondent produced a copy of the Claimant's letter of offer with a hand written note by RW1 that the Claimant's probation had been extended to 6 months. The Claimant told the Court that at no time was the issue of her performance discussed with her either by RW1 or the other Partner, Mr. Wainaina.

In the case of Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) Vs Stanley Kinyanjui and Magnate Ventures Ltd (Industrial Court Cause No. 273 of 2010)the Court stated thus:

“The proper procedure once poor performance of an employee is noted is to point out the shortcomings to the employee and give the employee an opportunity to improve over a reasonable length of time. In our view 2-3 months would be reasonable.”

I agree with this opinion and add that an appraisal of the performance of an employee must of necessity involve active participation of the employee. A credible performance appraisal process must be evidently participatory. A comment made by a supervisor without the participation of an employee cannot pass for a performance appraisal. Even where there may be disagreement between an employee and their supervisor on the verdict of a performance appraisal, the disagreement must be documented to show that an appraisal did indeed take place. I therefore find that the comment made by RW1 to the effect that the Claimant's probation had been extended does not constitute an appraisal of the Claimant's performance. Consequently, I find that the Claimant's appointment was confirmed by default upon expiry of the two months' probation period set in the letter of appointment.

For coherence I will handle the issues of desertion of duty and misconduct simultaneously. The Respondent stated that the Claimant threw a maternity leave application form at RW1 on 18th July 2011 and thereafter deserted duty.

The Employment Act, 2007 in Section 41 sets out the procedure for handling of cases of misconduct, poor performance and physical incapacity as follows:

(1)Subject to Section 42(1) an employer shall, before terminating the employment of an employee on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during the explanation.

(2)Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make

Neither the documentary nor the viva voce evidence showed compliance with the law in this respect. On this score therefore, I find that the termination of the Claimant's employment by the Respondent on grounds of poor performance and misconduct was unfair within the meaning of Section 45 of the Employment Act, 2007.

I now turn to the question as to when entitlement to maternity leave attaches to a female employee. The Respondent's case was that since the Claimant was still on probation she was for that reason alone not entitled to maternity leave. Maternity leave is a key right for female employees as set out in Section 29 of the Employment Act, 2007 which provides inter alia as follows:

(29) (1) A female employee is entitled to three months maternity leave

(2)On expiry of a female employee's maternity leave as provided in subsections (1) and (3) the female employee shall have the right to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave.

(3) …...............................

(4)A female employee shall only be entitled to the rights mentioned in subsection (1), (2) and (3) if she gives not less than seven days notice in advance or a shorter period as may be reasonable in the circumstances of her intention to proceed on maternity leave on a specific date and to return to work thereafter.

(5)The notice referred to in subsection (4) shall be in writing.

(6)....................................................

(7)No female employee shall forfeit her annual leave entitlement under section 28 on account of her having taken her maternity leave.

The Claimant stated and the Respondent confirmed that she submitted a leave application form to RW1. RW1 told the Court that he declined to approve the Claimant's application for maternity leave because she was still on probation. RW1 further told the Court that he had advised the Claimant to apply for a 2 months' study leave instead of maternity leave. The law as set out above does not impose any condition for maternity leave. Indeed unlike annual leave and sick leave, maternity leave has no waiting period. Child birth is a natural process over which even the mother has no control. A baby will be born when they are ready to be born and sometimes will even come prematurely. Moreover, the instruction by RW1 to the Claimant who was in the final stage of her last trimester, to apply for study leave instead of maternity leave, demonstrated an incredible misunderstanding of the purpose for maternity leave. In the premises, I find the Respondent's refusal to approve the Claimant's application for maternity leave on the basis of her being on probation discriminatory within the meaning of Section (46)(a) of the Employment Act.

I therefore award the Claimant the equivalent of 12 months' salary based on her last gross salary as compensation for unfair termination of employment. In making this award, I have taken into account the discrimination shown to the Claimant by the Respondent on account of her pregnancy in addition to denial of her right to be heard before termination of her employment. The Claimant was given adequate termination notice and is therefore not entitled to pay in lieu of notice. Since the Claimant's employment was terminated during the time she would have been on maternity leave, she is not entitled to the claim for unpaid maternity leave.

For the avoidance of doubt, this award is issued against the partners of Mugo Waweru and Associates jointly and severally. They will also pay the costs of this case.

DELIVERED IN OPEN COURT AT NAIROBI THIS 9TH DAY OF NOVEMBER 2012

LINNET NDOLO

JUDGE

In the Presence of:

........................................................................................................................Claimant

...................................................................................................................Respondent