Woman awarded a year’s salary for unfair dismissal

By Wahome Thuku

Maternity leave is one critical right given to female employees world over.

In Kenya, the Employment Act gives every female employee a right to a three-month maternity leave, besides the annual leave enjoyed by all employees. And when employers appear to forget this right, the courts are usually quick to jog their memory.

On March 15, last year Jane Wairimu Machira was employed by an audit firm, MugoWaweru and Associates, as an auditor with a salary of Sh35,000 a month. The employment was subject to a two-month probation, which was to end on May 2011.

On July 2011 she applied for her maternity leave. She said she submitted the leave application form to Mr Mwangi Mukururi, a partner of the firm, who declined to approve it and instructed her to apply for a two-month study leave.

On July 18, 2011 Ms Michira was admitted to the Nairobi Women’s Hospital where she delivered her baby the following day. That month, her employment was terminated.

Early this year, she filed a case at the Industrial Court seeking compensation for unfair termination and failure to pay her terminal benefits.

The firm claimed Ms Machira’s performance was very poor. Mr Mukururi told the court within the first month her performance was reviewed and she admitted underperformance.

According to Mr Mukururi another review carried out on May 10, 2011 showed she was performing poorly and it was allegedly agreed between her and the firm that the probation be extended for three months.

Mr Mukururi produced audit documents to prove that Ms Machira’s performance was poor. But there was nothing to show they had agreed to extend the probation.

The firm claimed on July 18, 2011 Ms Machira threw the leave application form at one of her bosses and left the office never to return.

On the basis of her poor performance, desertion of duty and misconduct the firm issued her with a termination notice. They claimed Ms Machira was not entitled to any pay in lieu of notice as she had absconded duty. And she was not entitled to maternity leave because at the time she applied for it, she was still on probation.

Ms Machira denied throwing the application form at her boss saying Mr Mukururi had thrown her out of his office when she went to pursue the maternity leave.

No agreement

Ms Machira said no performance review was ever conducted on her work and there was no agreement to extend the probation period.

Lady Justice Linnet Ndolo heard the case. Initially Ms Machira represented herself in the case but due to the complexity of the matter she hired a lawyer, Lempaa Soyianka to represent her. The lawyer cross-examined Mr Mukururi who admitted that the decision to extend the probation was never made in writing.

Ms Machira claimed Sh70,000 as pay in lieu of notice, Sh105,000 as unpaid leave and Sh420,000 compensation for unfair termination.

Justice Ndolo asked was whether the termination was justifiable.

Section 43(1) of the Employments Act, provides that in any claim arising out of termination of contract the employer is required to prove reasons for termination failing which its deemed to have been unfair. Section 45(2)(c) provides that termination is unfair if the employer fails to prove it was done in accordance with fair procedure.

The Industrial Court stated once poor performance is noticed, proper procedure should be followed by point it out to the employee and giving him or her opportunity to improve over a reasonable length of time.

“I agree with this opinion and add performance appraisal of an employee must of necessity involve active participation of the employee,” the judge said.

“A credible performance appraisal process must evidently be participatory. A comment made by a supervisor without participation of an employee cannot pass as performance appraisal.”

The judge held that a comment by Mukururi that the probation had been extended to six months did not constitute an appraisal of Ms Machira’s performance. Her employment had thus been confirmed by default upon the expiry of the two-month probation period as indicated in her letter of appointment.

Reasons

Section 42(1) of the Employment Act also requires that before terminating employment on the ground of misconduct, poor performance or physical incapacity, the employer shall explain those reasons to the employee in a  language he or she understands and the employee is entitled to have a colleague present or union official. The employer must also hear and consider a representation, which the employee may make.

There was no evidence in court that this requirement had been complied with by the firm. The judge thus held that termination of Machira’s employment for poor performance and misconduct was unfair under the law.

Section 29 of the employment Act provides that a female employee is entitled to three months maternity leave. And after the expiry of the leave, the employee has a right to return to the same job or to a reasonably suitable one on terms and conditions not less favourable to those that applied before she went on leave.

But the employee is only entitled to these rights if she gives not less than seven day notice in advance or a shorter period as may be reasonable in her circumstances, of her intention to tale the maternity leave and to return to work thereafter. This notice must be in writing. And the employee should not forfeit her annual leave.

Lady Justice Ndolo said the law does not impose any conditions for maternity leave.

“Indeed unlike annual leave and sick leave, maternity leave has no waiting period,” she said. “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.”

The judge noted Ms Machira was on her final stage of her pregnancy but Mr Mukururi had instead instructed her to apply for study leave.

This, the judge said, demonstrated “an incredible misunderstanding of the purpose of maternity leave.”

She held that refusal to approve the leave on the basis that Ms Machira was on probation was discriminatory under section 46 of the Employment Act.

The court ordered the firm to pay Ms Machira an equivalent of 12 months gross salary as compensation for unfair termination of employment.

The court, however, ruled that Ms Machira had been given notice of the termination hence was not entitled to pay in lieu of notice.

The judge ordered the award would apply against the partners of MugoWaweru and Associates jointly and severally and they would also pay Machira the costs of the suit.