Transfer of an Employee during maternity leave

James WaNjeri - Employment Lawyer

Employees can terminate their own employment by way of a resignation. When an employee resigns because of unfavorable conditions created by the Employer, they can sue for Constructive Dismissal. The Court looks at the unique circumstances of each case and an employee succeeds in their constructive dismissal suit if they show that they informed the employer of the reasons for their resignation. The way in which the resignation letter is written is of fundamental importance. If an employer resigns and fails to blame the employer, their case will not succeed.

Recently, Justice Linnet Ndolo of the Employment and Labour Relations Court in the case of Rotich v Kenya Women Microfinance Bank PLC (Cause E583 of 2022) [2024] KEELRC 2141 (KLR) was asked to determine whether the transfer of an employee during maternity leave and withdrawal of some benefits, leading to her eventual resignation amounted to constructive dismissal.

The employee had worked for the employer for 19 years, rising to the position of General Manager in charge of Operations. In a letter dated 24th July 2019, while she was on maternity leave, the Employer arbitrarily transferred her from the Rift Valley Zone to the Head Office in Nairobi. She claimed that her transfer was unreasonable, unfair, uncalled for, irregular, and premeditated to achieve an ulterior motive of inconveniencing her and her newborn baby to drive her to resign. According to her, this action contradicted the organization’s Human Resources Policies on lactating mothers.

The employee also accused the employer of subjecting her to unfair labour practices as follows:

a.On 3rd April, the Employer unilaterally altered the terms of her employment by reducing her airtime allowance from Kshs 10,000 to Kshs 5,000;

b.By a letter dated 24th July 2019, the Employer unilaterally withdrew her telephone allowance;

c.By a letter dated 8th October 2019, the Employer unilaterally withdrew her car allowance;

The Employee reported to the Head Office on 2nd October 2019. On 15th October 2019, she wrote to the employer, seeking reasons for the withdrawal of her car allowance and entertainment allowance as well as the reduction of her telephone allowance. She also asked to be issued with a job description and claimed to have been issued a job description with nonspecific duties.

She was informed that due to her transfer to the Head Office, her duties did not include any fieldwork, leading to the withdrawal of her car and entertainment allowances as well as the reduction of her telephone allowance. According to her, she needed the allowances to meet her target for fixed deposit mobilisation.

The Employee’s case was that the Employer’s actions left her frustrated to the extent that she had no choice but to tender a resignation letter on 7th November 2019.

Employer’s Response

The Employer denied the claim of constructive dismissal and stated that the Employee voluntarily opted to resign on her own accord. Upon her resignation, the Employer deducted her 3 months salary for the contractual notice period.

On the question of allowances, the Employer stated that some of the allowances received by the Employee were variable and did not form part of the statutory allowances set out in law. Other benefits issued to her were dependent on the position she was occupying and would be subject to withdrawal if she was assigned a role that did not require the facilitation of such benefits, or if she was moved to a station where the functions supported by those benefits were provided for by alternative arrangements, such as pool transport and a well-manned telephone exchange system.

The Employer indicated that they had reviewed the telephone allowance for all its managers, an administrative decision that was duly communicated to the Employee. In the letter of 3rd April 2019, the Employee was notified that the telephone allowance had been broken into Kshs 5,000 as a monthly allowance and a maximum of Kshs 5,000 to be claimed upon production of evidence of expenditure. At the time of issuing its letter dated 24th July 2019, withdrawing the Employee’s telephone allowance, she had already been issued with a notice of transfer from the Rift Valley Zone to the Head Office in Nairobi. She no longer needed the telephone allowance since her functions of overseeing the vast Rift Valley Zone were no longer within her responsibilities. At the Head Office, there was an elaborate and well-manned telephone exchange system at the disposal of all authorised managers, including the Employee.

The withdrawal of the car allowance coincided with the Employee’s expected reporting date to the Head Office where a fleet of cars, at the disposal of officers for official duties, was maintained. There were also arrangements where officers could hail taxi cabs which were paid for by the Employer.

While conceding that the Employee was issued with a transfer letter on 24th July 2019, while she was on maternity leave, the Employer’s defence was that the letter did not require the Employee to cut short her maternity leave. Her transfer to the Head Office was a normal administrative action and she was paid an adjustment allowance worth 14 days salary plus a reimbursement for transportation costs. In addition to this, it had adequate facilities for lactating mothers at the workplace, and arrangements were made to allow such mothers to leave work early to have sufficient time with their babies. For the Employer, the Employee was afforded all the required support pre and post her maternity leave.

The Employee’s complaint was that the Employer’s cumulative actions of transferring her while on maternity leave, and withdrawing her allowances forced her to resign, amounting to constructive dismissal.

The Court began by noting that a transfer is an administrative action taken by the employer in the ordinary course of business and courts are generally discouraged from interfering. However, when an employee states that the employer’s action is punitive or overly oppressive, the Court can intervene.

Section 29(2) Employment Act states that

“On expiry of a female employee’s maternity leave as provided in subsections (1) and (3), the female employee shall have the right to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave.”

Kenya is a member of the International Labour Organisation (ILO) and the ILO Maternity Protection Convention No 183 [2000] guarantees female employees maternity leave, accompanied with an assurance that they will return to their job at the expiry of the maternity leave.

The Court noted that “Unlike annual leave, which may be utilised for varied purposes, maternity leave is intended to allow the mother time to recover from the vagaries of child birth, while taking care of the new-born baby. This explains why this special leave is protected by the law in a manner that shields the mother from any uncertainties at the work place.”

The evidence in court showed that the transfer letter was sent on 24th July 2019 and was to take effect on 1st August 2019, meaning that the Employee had just one week to complete any pending tasks and prepare to hand over her duties in Rift Valley Zone. At that time, she was still on maternity leave

The Court found that transferring the Employee while she was on maternity leave was a breach of both domestic and international law. That action failed the Reasonableness Test as in the opinion of the Court “It cannot be said to have been reasonable to expect an employee on maternity leave to worry about handing over and relocating from Eldoret to Nairobi.” The Court rejected the explanation that the rush in transferring her was due to a leadership gap in the Rift Valley Zone and the Judge was of the view that “I think however that the Respondent could have found other means of filling any such gap, without subjecting a lactating mother to the anxiety that comes with a sudden transfer.”

Regarding the allowances, by the transfer letter, which was to take effect on 1st August 2019, the Employee’s telephone allowance was withdrawn. This was done even though she did not report to Nairobi until October 2019. The Employer’s explanation that she was resting at home and did not therefore need the telephone allowance was rejected. As long as she remained an employee her telephone allowance could not be withdrawn on the unjustifiable ground that she was away on maternity leave. On the withdrawal of the car allowance upon her transfer from the Rift Valley Zone to Nairobi, the Court found that the transfer letter stated that the only allowance that was to be affected was the telephone allowance, with all other terms and conditions of employment remaining unchanged. The decision to withdraw her car allowance therefore amounted to an unlawful variation of her terms of employment.

The Court, therefore, found that the Employee’s claim for constructive dismissal was proved and proceeded to award her the maximum 12 months’ salary in Compensation, together with the notice pay and allowances that had been unlawfully taken away for a total sum of Kshs. 8,119,000.

Conclusion

Transfers are administrative decisions and the Court does not like to wade into administrative matters between employers and employees. However, when an administrative decision becomes oppressive, the Court can step in to protect the parties. While each matter will be looked at on its own unique facts, it is key to note that the actions of the employer must pass the test of reasonableness to avoid sanctions from the Court. Decision-making is a key skill that involves making a choice based on a thorough understanding of the information available. Employers should ensure that the decision-making process is majorly informed by structure. One way to ensure that those decisions are made within a legal framework is to consistently upskill decision-makers through regular training. An organisation’s internal policies should guide decision-makers adequately to reduce the chances of rogue or costly decisions being made, which may end up attracting significant legal risk. Emotional and social intelligence is also key in decision-making, especially because a lack of such knowledge can result in oppressive conduct.

As we now head to the last quarter of the year, an annual review and, where necessary, overhauling of policies should be carried out. The benefit of this is to ensure that the business is operating on best practices and applying the lessons learned. This, in effect, ensures the survival of the business, better employee relations and efficiency in operations.

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The contents of this newsletter do not constitute legal advice and are provided for general information purposes only.

James Njeri and Company Advocates

4th Floor, Ngong Lane Plaza,

Ngong Lane, off Ngong Road

Nairobi, Kenya

Tel: 0719494083

Email: legal@jnadvocates.com