Windsor to pay hostess Sh2.6m for sacking over pregnancy

Windsor Hotel and Country Club was last month ordered to pay a former employee Sh2.5 million for sacking her over a pregnancy three years ago.

In a ruling seen by the Business Daily last week, the Employment and Labour Relations Court held that Ms Tracy Wangechi Mugambi was discriminated against when she was sacked just after resuming duty from maternity leave.

“It therefore follows that the respondent (Windsor) had no valid reason to terminate the services of the petitioner,” Justice Hellen Wasilwa ruled.

The court ordered the hotel to pay her Sh2 million for discrimination on account of pregnancy, three months’ salary in lieu of notice, gratuity for working for six years and 12 months’ salary for unlawful termination.

She was also given shoe entitlement of Sh18,000 among other compensation all amounting to Sh2,575,527.

No complaint

Evidence presented in court showed that Ms Mugambi became expectant in 2014 but carried on with her duties without a complaint.

On February 4, 2015, however, she was allegedly called by the Hotel’s Banqueting Manager, who inquired when she was due for delivery. She told the manager she was due to deliver in July 2015.

The manager told her that the director had said she should proceed on leave because “she looked tired” and report back to work after delivery.

She proceeded on paid leave as directed although she was not issued with leave forms to fill. Ms Mugambi delivered in July 2015, and took annual leave until December. She was sacked after resuming duty on January 18, 2016.

The hotel management defended the sacking saying it was not on account of her pregnancy, arguing she was terminated six months after the delivery and there was no nexus between her termination and the pregnancy.

Supervisor

Ms Mugambi told the court that she was employed by the hotel as a hostess in September 2009 and was promoted to the position of supervisor in 2011, where she worked until the sacking.

She said she performed her duties with exceptional and exemplary dedication, competence and to the management’s satisfaction.

The management through Ms Judy Macharia, the Human Resource Manager, dismissed her claims saying she was not a victim of discrimination as alleged but her dismissal was summary.

The manager said that Ms Mugambi had a record of at least five offences that amounted to gross misconduct, and which offences cumulatively point to an employee who should have been terminated long ago.

She defended the summary dismissal stating that it was procedural and in accordance with the provisions of Section 44 of the Employment Act as well as the hotel’s employee manual which provided grounds for summary dismissal.

In the judgment delivered on March 13, Justice Wasilwa said Article 27(4) is explicitly clear that no one should be discriminated against on account of pregnancy.

Plausible reason

She said she had not found any plausible reason for terminating her after reporting from maternity leave.

“Given that the petitioner was also terminated without any valid reason and without due process, I find the petitioner’s termination unfair and unjustified as provided for under Section 45(2) of Employment Act 2007,” she said.

The Judge said there is no indication that she committed any other offence from July 2014 to January 2015 when she delivered her baby.

“The issue of absconding duty is also not raised in the termination letter. This leaves the court with only one plausible reason for termination, being pregnant and delivering a baby,” she said.