Woman Fired after Maternity Leave Waits for Appeal Judgment after She was Awarded KSh 1.2m in 2021

 

A woman who sued her employer for irregularly firing her after she resumed her maternity leave has decried delayed justice. Anita Nzisa Kivulu sued Cancer Care Kenya for unfairly terminating her employment and was awarded KSh 1.2 million.Employee sues Cancer Care Kenya for unfair sacking According to court papers seen by TUKO.co.ke, Anita Nzisa Kivulu sued Cancer Care Kenya Limited for unfairly terminating her employment in 2019. Nzisa, through a claimant's memorandum instituted on October 19, 2019, and filed in court on October 11, 2019, told the court that Cancer Care Kenya employed her as the marketing manager from August 22, 2018, and used to pay her a salary of KSh 160,000 per month.Nzisa said she was asked to proceed on a further 11 days of leave pending further instructions from the employer, and on October 1, 2019, she was called by the organisation's administrative executive and asked to report to work on October 2, 2019. "On October 2, 2019, the claimant maintains that she was issued with a letter terminating her employment dated October 1, 2019, on allegations of failure to carry herself in a manner expected of her, refusing /ignoring on various occasions to carry out her duties as expected, and carelessly and improperly performed her work which she ought to have done/performed carefully and properly under her contract," reads the court judgment. She told the court that she was not given a fair hearing prior to her employer's decision to terminate her employment and a purported disciplinary hearing on September 23, 2019, which she reiterated did not occur. Nzisa contended that her employer's decision was unlawful, unfair, and wrongful and failed to comply with the mandatory provisions of Sections 45, 47(3), 49, and 50 of the Employment Act, 2007 and Sections 12(1), (2), and 15 of the Labour Institutions Act, 2007. Aggrieved by the decision to terminate her employment, Nzisa filed the instant claim, seeking a declaration that her termination of service was unfair, unlawful, and illegal, to be paid terminal dues comprising a one-year compensation for loss of employment of KSh 2,280,000, a gratuity of KSh 380,000, and leave days earned but not taken of KSh 69,666, all totalling KSh 2,729,666. She also pleaded with the court to direct the respondent to issue her a certificate of service besides taking care of the costs of the suit.  Cancer Care Kenya, in its defence dated December 20, 2019, which was filed in court on January 30, 2020, denied the accusations raised by the claimant. According to the organisation, it did not terminate Nzisa's employment and did not owe her any terminal dues. It described the claimant's claim as an abuse of the court process and requested dismissal. Claimant submissions The parties agreed to dispose of the claim by way of written submissions in which the claimant denied receiving any notice to appear before any disciplinary committee or performance review committee concerning the accusations levelled against her in the letter of October 1, 2019. "She further maintained that in the documents attached by the respondent, referred to as Minutes of Disciplinary Hearing held on September 23, 2019, the only truth captured therein is a discussion regarding her welcome back from leave," read the judgment. She contended that there was no fairness in the hearing as she was unaware of the agenda and was not allowed to call an employee of her choice or union staff as her representative in the meeting. "The claimant further contended that pursuant to Clause 18 of her Letter of Appointment, she is entitled to three (3) warning letters before being issued a final warning to warrant her dismissal. She further maintained that this was not done as no evidence of such communication was availed to this court for scrutiny," the judge highlighted the submissions. She added that the employer failed to demonstrate a valid reason to terminate her employment as provided for in Section 43 of the Employment Act, thus making the termination unfair, unlawful, and invalid. 

by  Michael Ollinga Oruko