Grace Wairimu Njoroge v Niti Computers [2014] KEELRC 1499 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the claimant's employment upon her return from maternity leave was unfair and wrongful
- 2.Whether the claimant is entitled to compensation, salary arrears for October to December 2012, notice pay, severance pay and unremitted statutory deductions (NSSF, NHIF, PAYE)
- 3.What monthly salary should be used in computing the award, given the discrepancy between the pleaded salary and the payslips
Key legal issues
#Whether the termination was unfair
The termination was unfair; the claimant lost her job while on maternity leave without justification, notice or a hearing
The claimant went on maternity leave with the respondent's knowledge and on resumption found her job gone. There was no notice, no written reasons and no hearing, nor any allegation of misconduct or poor performance. The court held this was both procedurally and substantively unfair and awarded the equivalent of six months' pay as compensation at her monthly salary of Kshs.24,575.00.
Entitlement to salary for the maternity leave period
The claimant was awarded salary from October to December 2012 (Kshs.24,575.00 x 3 = Kshs.73,725.00, entered as Kshs.73,750.00)
The court found the claimant entitled to her pay while on maternity leave until the date she was due to resume work, computed as three months' salary. The final order recorded this as unpaid salary at Kshs.73,750.00, a slight discrepancy from the computed Kshs.73,725.00.
Severance pay and unremitted statutory deductions
Severance pay declined as this was not a redundancy; unremitted NSSF, NHIF and PAYE cannot be paid to the claimant, but service pay at 15 days per completed year was awarded (Kshs.12,285.50)
Severance pay is a redundancy entitlement and the facts disclosed no redundancy. Claims for unremitted statutory dues belong to NSSF, NHIF and KRA and cannot be awarded to the employee. However, evidence of non-remittance entitled the claimant to service pay at 15 days for each year worked; with one completed year from 10th February 2010 to termination in December 2012, she was awarded Kshs.12,285.50.
Legal principles established
#- Termination without notice, without written reasons and without a hearing is procedurally and substantively unfair
- Termination of an employee who is on or returning from maternity leave, without just reason or notice, is unfair
- Even an undefended suit must be analysed on its own merits
- Where an employer has not remitted statutory deductions, service pay at 15 days' pay for each year worked is due
Court orders
#- 1.Declaration that the termination was unfair
- 2.Compensation of Kshs.147,450.00 (6 months' pay at Kshs.24,575.00)
- 3.Unpaid salary for October to December 2012 at Kshs.73,750.00
- 4.Service pay at Kshs.12,285.50
- 5.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court over disputes relating to employment and unfair termination
Relief refused
#Severance pay
Severance pay applies to redundancy, and this was not a redundancy case
Unremitted deductions to NSSF, NHIF and PAYE
These are statutory dues owed to the statutory bodies and cannot be awarded to the claimant; instead service pay was awarded
Costs
Each party will bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Where an employee is terminated without notice, without written reasons for the same and without being taken through a hearing process, the same becomes procedurally and substantively unfair.
In this case where the claimant was on her maternity leave with the knowledge of the respondent and when she resumed she found she had no job without any just reason or notice, this is unfair.
However despite the fact that the suit is undefended, the same must be analysed on its own merits.
Judgement is entered for the claimant as against the respondent in the following terms; a. The termination was unfair; b. Compensation at Kshs.147,450.00; c. Unpaid salary at Kshs.73,750.00; d. Service pay at Kshs.12,285.50; and e. Each party will bear their own costs.
Issues in the judgment
#Computed maternity leave salary (Kshs.24,575 x 3 = Kshs.73,725.00) differs from the amount in the final orders (Kshs.73,750.00)
Judgment states the claimant applied for maternity leave in October 2012 and 'was to resume work in December 2013', which conflicts with the evidence that she was to resume in January 2013 and the award covering October to December 2012
Heading misspelled as 'JUSDGEMENT' in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Wairimu Njoroge v Niti Computers [2014] KEELRC 1499 (KLR)", Case Analysis (2014). Cause No. 964 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1499/eng@2014-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.