NGO losses Sh3.2m battle against woman it sacked over pregnancy

A woman who was sacked for applying for maternity leave has won another court battle against an international NGO.

World Vision will now pay Cecilia Mutanu Musau Sh3.2 million after the Court of Appeal threw out an application against the award. 

Justices Asike Makhandia, Luka Kimaru, and Aggrey Muchelule agreed that the organisation did not properly lodge its notice of appeal and never served it on Musau.

“ As requested by the learned counsel Mr. Onyango, we find that the notice of appeal and the record of appeal are materially defective and are each struck out,” ruled the Bench headed by Justice Makhandia.

World Vision appealed to the Employment and Labour Relations Court, which ruled that it had mistreated Musau by terminating her contract simply because she was giving birth.

Justice Stephen Radido said Musau expected the NGO to renew her contract after working with them since 2005.

“The court has concluded that the respondent breached the claimant’s legitimate expectation on the renewal of the contract,” said Radido.

Musau was employed on a fixed two-year contract as a Development Facilitator.

In her case, she argued that she was discriminated against on account of her pregnancy since she was only given one month of maternity leave instead of the three months provided for by the law.

She argued that World Vision failed to renew her contract on the grounds of pregnancy and changed her job designation but maintained the job description.

According to her, the NGO took advantage of her pregnancy to deny her a chance to exit through redundancy and the resultant redundancy benefits.

She said that her contract was renewed several times and her work performance saw her get promoted and transferred to different branches of the NGO.

On September 27, 2019, her contract was renewed and she was to serve as a Grants Coordinator, Integrated Programs from October 1, 2018, to September 30, 2020.

On July 5, 2020, she said that she applied for her annual leave which was to run between August 3 and 20 that year and also informed her employer that she would proceed on maternity leave around the same month.

She also applied for her maternity leave on July 9, 2020, which was to start on August 26.

However, on July 21, she was told that her contract would terminate on September 30 that year and she should prepare to hand over and clear.

On September 28, she told the court that World Vision updated about a change of process and establishing a new institutional structure.

She cleared and sued the NGO alleging that her employment had been terminated unfairly and that World Vision disregarded the law and procedures that require both substantive justification and procedural fairness before termination of employment.

Justice Radido observed that she was not able to prove to the required standard that her contract was unfairly terminated as per Section 41 of the Employment Act, 2007.

Ms Musau however relied on legitimate expectation to argue her case to challenge the fairness of the decision by World Vision.

She said that since 2005 she had been promoted severally even to the sensitive position of Grants Coordinator and had a salary increment a year before the lapse of her contract.

On its part, World Vision denied that it had created a legitimate expectation that it would renew her contract adding that the renewal was upon mutual agreement and notice of non-renewal was not required under the contract.

It was noted that she did not have any disciplinary issues during her 15-year stay at the NGO.

According to Justice Radido, World Vision during the trial did not suggest that Ms Musau’s role had become superfluous or that it was necessary to change their institutional design.

“If indeed there was restructuring, the Respondent owed a duty under the principle of fair dealing to formally engage the Claimant to find out if there were alternative openings,” said Justice Radido.

He said that the NGO did not present any evidence that there was a need for restructuring adding that it appears they took a casual approach to restructuring.