A court has ruled a non-profit unfairly dismissed a pregnant employee but rejected her discrimination claim.The Employment and Labour Relations Court in Voi has ordered
Elimu Fanaka, an education non-profit, to pay a former manager one month’s
salary over procedural lapses during her summary dismissal.
While Justice Monica Mbarũ found that the organisation had a
genuine reason to terminate Belinda Mkanjala Nyambu’s employment, it failed to
follow fair procedure.
Nyambu, a programme manager, announced her pregnancy in
March 2025 and said she would take maternity leave from August.
“During the employment period, the respondent did not
subject the claimant to any performance appraisal or disciplinary process. Save
for several reprimands for minor omissions and inadvertence, the claimant was
highly regarded in her work,” the court heard.
But following the maternity leave notice, the chief
executive began harassing her, she told the court.
“However, this communication led to events that resulted in
the termination of employment. The salary scheduled for review in 2025 was not
affected. A performance appraisal was instituted, leading to termination of
employment. She was required to report to the COO instead of the CEO, as
before.”
Nyambu claimed the employer had no written policies or rules
governing how a Performance Improvement Plan (PIP) should work, nor was it
designed to help her get better at her job as it offered no practical support
that would have given the employee a fair chance to improve.
“During the PIP, the CEO introduced new tasks and despite
the claimant’s protests, no fair procedures were in place to address them. This
was with malice and was intended to terminate employment.”
On June 24, 2025, the claimant received a poor PIP
evaluation report. Consequently, the CEO recommended her demotion to a
programme associate position.
The claimant asserted that this reassignment was a hostile
reaction aggravated by her prior announcement of her pregnancy and upcoming
maternity leave.
On July 7, 2025, the claimant submitted three leave
applications: for a doctor’s appointment, vacation and maternity leave. The
chief executive approved maternity leave from August 4 to November 4, 2025. At that time, the claimant
had three accrued annual leave days and seven sick leave days, totalling 12.75
days. However, after her demotion, the respondent reviewed her sick leave to
her disadvantage.
On July 15, she woke up unwell and emailed the chief
executive. He replied that if she did not wish to work professionally, she
should resign rather than frustrate programme work. The claimant said this
amounted to harassment and intimidation, harming her health.
During an antenatal clinic visit on July 21, a doctor
ordered 14 days of bed rest. She provided the respondent with a certificate of
incapacity.
However, the CEO, COO and administrative manager repeatedly
demanded she reports to work, which she termed inhumane and malicious.
Additionally, while on sick leave, the respondent summarily
dismissed her on July 23, 2025.
Nyambu held that this amounted to unfair labour practices
and pregnancy discrimination, evident from the performance improvement plan,
the failure to review her salary and her demotion. The demand to work while on
sick leave was in breach of Section 10(5) of the Employment Act.
The respondent denied discriminating against the claimant
based on pregnancy and maintained that the dismissal was due to persistent
underperformance and abandonment of contractual duties.
“During the claimant’s tenure as the programme manager, a
consistent decline in work quality and failure to meet critical deliverables
were noted. These shortcomings were communicated and instead of terminating her
employment, the option taken was a reassignment of duties to a programme
associate to align with her capacities,” court records show.
The respondent said Nyambu's request for leave was approved,
but problems arose when she persistently refused to prepare a transition plan,
finalise handover notes, or train her colleagues.
Her unplanned, poorly communicated absences disrupted operations and caused critical programme delays.
The court accepted that the employer had valid reasons for
termination, including persistent underperformance and refusal to delegate
tasks.
However, Justice Mbarũ ruled that the dismissal was
procedurally unfair because the respondent did not comply with section 41 of
the Employment Act.
Because the claimant was denied the opportunity to have a
representative present, the court deemed the process unfair.
“I find the termination of the claimant's employment by way
of summary dismissal unfair for want of due procedure. The summary dismissal,
communicated by notice dated July 23, 2025, resulted from the disciplinary
hearing held on July 22, 2025, and was devoid of protections under section 41 of
the Act. Under sections 45 and 49 of the Act, the claimant is entitled to
notice pay and compensation.”
In regard to time off, the court underscored that annual
leave is an absolute right, but conversely, sick leave is not automatic and
cannot be tabulated as ‘accrued days’ ahead of time.
“Despite the employment contract stipulating a 30-day sick
leave provision, such leave was available only upon sickness.”
The judge ordered one month's gross salary in compensation. Both parties were ordered to bear their own costs.
