Last long-laugh for woman who lost job over pregnancy

What you need to know:

  • At the time she was fired, her salary had also been delayed for two months

  • Court awarded her Sh2.3m, but the employer went back to court last month trying to reopen the case on the strength of new evidence

  • Avic, in its defence, had argued that during an April, 2017 appraisal Ms Yini got emotional and disrespected a manager.

The news of pregnancy turned from sweet to sour in three days for former Avic International business manager Lu Yini, who was on July 24, 2017, fired for getting pregnant.

Ms Yini, who is married to a Kenyan under Chinese laws, was summoned by Avic executive director Chen Zhe and informed that the multinational “would not take risks of her pregnancy”.

BELONGINGS

Ms Yini found out that she was pregnant on July 21, 2017, and shared the news with a few colleagues. She was summoned by Avic executive director Chen Zhe three days later to explain why she had not revealed her pregnancy status.

Mr Zhe first told Ms Yini that she was no longer permitted to use company vehicles like other Chinese employees, before informing her that she was fired.

Ms Yini said she did not know that she was legally required to report her pregnancy to Avic and that she had planned to make the news public only after confirming that the baby was developing well.

Her family was not yet aware of the pregnancy at the time.

After being fired Ms Yini was not allowed to return to clear or pick up her personal belongings.

At the time Ms Yini was fired, her salary had also been delayed for two months.

Avic, in its defence, had argued that during an April, 2017 appraisal Ms Yini got emotional when managers asked her about her position with the company, excused herself and went back to her desk.

The managers felt disrespected and recommended that Ms Yini be fired, but Mr Zhe allegedly asked that the business manager be given three months to redeem herself.

The Chinese multinational also wanted Ms Yini ordered to surrender her work-designated laptop, but the former business manager argued that she left the computer in Avic’s premises.

CONTRACT

High Court judge Byram Ongaya ordered that Avic pay Ms Yini Sh2.3 million in March, but the multinational went back to court last month trying to reopen the case on the strength of new evidence it did not have during trial.

Justice Ongaya in his ruling held that the events of the appraisal were exclusive of the meeting between Mr Zhe and Ms Yini, hence had no bearing on the unfair termination case.

“Was the termination unfair or unlawful? The court returns that the answer is in the affirmative. Section 46 (a) of the Act provides that a female employee’s pregnancy or any reason connected with her pregnancy does not constitute a fair reason for dismissal,” Justice Ongaya ruled in March.

In the new application to reopen the case, Avic claimed it had just discovered that Ms Yini did not have a work permit at the time she was its business manager, meaning the contract between the two parties was illegal.

Interestingly, Avic was by law meant to apply for the work permit on behalf of Ms Yini.

The firm’s evidence was contained in a letter Ms Yini sent to her former bosses in which she faulted Avic for failing to apply for her work permit as was expected.

ILLEGALITY

Justice Ongaya has now ruled that Avic did not show when it discovered the new evidence, and held that lack of a work permit is not enough to invalidate an employment contract.

“The applicants (Avic) have not disclosed when the alleged letter by Ms Yini dated July 25, 2017, came into their possession and the court rules that Avic must have had the letter throughout and after the filing of the suit on October 30, 2017.”

“Even if illegality had been pleaded, it is not in dispute that Avic were obligated by statute to apply for the work permit and they cannot at their own instance seek to say the contract of service was void, null and unenforceable,” Justice Ongaya ruled.

Ms Yini argued that Avic is yet to pay her the delayed two months’ salary that was pending at the time she was fired, despite an out-of-court deal between the two parties on that specific issue.