The Court of Appeal is set to give direction on the hearing of an eight-year-old case pitting Compassion International Kenya, a non-governmental Christian organization, and a former employee.
Nkatah Mwongera, a former employee moved to court to challenge Compassion International Kenya citing unfair dismissal, discrimination at the workplace, and unfair labour practice.
The Employment and Labour Relations Court of Kenya in its judgment delivered in January 2024, ruled in favor of the claimant, and directed the organisation to compensate Nkatah.
The claimant’s case — as captured in the judgments (Case No.14.89 of Kenya) — was that while on maternity leave – she received a letter dated 29th March 2016 from the employer redeploying her to the position of Training Specialist within its Program Implementation (PI) Department effective 1st April 2016 – but without proper notice and/consultation.
“The said letter expressing the decision to redeploy her was made following detailed deliberations by the management and affirmed that she would undergo an on-job training for six (6) months before evaluation of her performance, suggesting she was being placed on probation,” – reads part of the judgement.
Nkatah argued that her employer’s unilateral decision and actions blatantly discriminated against her and that they were unlawful.
She claimed that the redeployment was a breach of her constitutional right to fair labor practices as it firstly purported to convert her employment terms from permanent and pensionable to probation yet her employment had been confirmed in 2016.
Also, since the decision came with a new position, which was contrary to clause 5.5 (c) of the Respondent’s Employee Handbook on working hours for nursing mothers arguing that the decision was tantamount to a demotion.
In its response, the Compassion International Kenya averred that the position the claimant served in were subject to terms and conditions of deployment and were not inconsistent with her primary employment contract.
The respondent denied the claim that they had not afforded the claimant an opportunity to discuss the said redeployment.
The Court having considered the pleadings, ruled in favor of the claimant, terming the decision to redeploy her suspect and hurried, and discriminatory, and an affront to labor practices.
The court determined that the claimant’s decision to resign from the company fell into the classical fold of constructive dismissal.
The court awarded the claimant compensation equivalent to 12 months’ gross salary for the constructive dismissal – Ksh2, 626,768.
“Damages for the unfair labor practices and in particular the disregard of her situation which was maternity related as well as the unilateral transfer in disregard of lactatic requirements and Respondent’s policies – Ksh2, 000, 000,” read the court judgment
