Court awards former Pandya Memorial Hospital staff Sh3 million

by Wakili Liam
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A former lab technician who sued Pandya Memorial Hospital for discrimination has been awarded Sh3 million by the Court of Appeal.

Geeta Joshi had demanded higher responsibility allowance amounting to Sh40,000 in 2015, sparking a row with her employer which led to her dismissal.

After Ms Joshi asked for responsibility allowances, the hospital slapped her with a notice to show cause why she should not be disciplined for allegedly leaking confidential information to an unauthorised individual.

She responded to the allegations on March 4, 2014 and asked for a meeting with top management to air work-related grievances.

Just 27 days later, the hospital’s chief administrator issued a memo to all staff stating that Mr Peter Ndalu Nzuki would be taking over as laboratory superintendent.

On the same day, Ms Joshi received a letter revoking her appointment as laboratory superintendent. She had been demoted. One year later, the hospital informed Ms Joshi that she would be retired at the end of 2015, as she was turning 55.

“According to the hospital policy, the retirement age for female staff is 55 years, the employment records at our disposal indicates (sic) that your date of birth was 1960. We seek to advise you that the management will retire you upon the date you will be celebrating your 55th birth (sic). However, to give you amble (sic) time to prepare; you will work with us until December 31st 2015,” the letter stated.

The Court of Appeal has now ruled that the hospital’s policy to retire female staff at 55 years is an indication that there is a different age limit for male workers.

And on the basis of that, Ms Joshi will now take home Sh3 million as compensation for gender discrimination.

Last January, High Court Judge Linnet Ndolo awarded Ms Joshi Sh5 million for discrimination, but an appeal by Pandya Memorial Hospital has seen the figure reduced by Sh2 million.

“The learned judge held, and rightly so, in our view, that the appellant having stated that its policy required female staff to retire at 55 years, the corollary was that male staff had a different retirement age, which was unfair and discriminatory.

“Pandya Memorial Hospital did not disprove Ms Joshi’s allegations (on different retirement age for male and female staff). We therefore dismiss ground 5 of the appeal,” Justices Roselyn Nambuye, Hannah Okwengu and David Musinga said in their judgment.

The hospital had denied that there is any discrimination, and that all its staff are retired on their 55th birthday.

Both the High Court and Appellate Court, however, relied on the letter sent to Ms Joshi specifically indicating that female employees leave at 55 years.

The hospital had also challenged the High Court’s decision to award both damages for discrimination and one year’s salary for unfair termination, saying it amounted to double compensation.

One of the main bones of contention at the Appellate Court was a decision by High Court Judge Ndolo to dismiss Pandya’s request to adjourn a May 2017 hearing because the hospital’s lawyer, Sanjeev Khagram, and one key witness were not in court.

Pandya insisted that Justice Ndolo’s decision to proceed with the case violated the hospital’s right to be heard.

On the day, another lawyer identified in court papers as Ms Mutune informed the court that Mr Khagram had travelled out of the country and that one witness was not present despite being notified of the hearing date.

Pandya asked the Court of Appeal to set aside both awards, and only give one month’s salary in the event that the judges felt Ms Joshi’s employment was terminated unfairly.

The Court of Appeal agreed and struck off the one year’s salary award for unfair termination and lowered the Sh5 million High Court award to Sh3 million.

The appellate judges also held that Justice Ndolo acted within her authority in declining to adjourn the case at the High Court.

“Applications for adjournment must be grounded on clear, logical compelling and legally convincing reasons. Grant of an unmerited application for adjournment on flimsy and baseless grounds amounts to abuse of judicial discretion and contributes to backlog of cases. A diligent judge will not adjourn a hearing on such flimsy reasons, irrespective of whether or not it is the first time the matter is coming up for hearing,” the three judges held.

Ms Joshi will also receive the Sh40,000 responsibility allowance that sparked the bitter legal tussle. In total, she will receive Sh3,040,000.

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