Recently, in the case of Ojung’a v Healthlink Matcare Ltd t/a Nairobi Women Hospital (Cause 1620 of 2018) [2023] KEELRC 1607 (KLR) the Employment and Labour Relations Court upheld Article 32 of the Constitution of Kenya, 2010 (the “Constitution”) which guarantees the right to freedom of conscience, religion, belief, and opinion with respect to the employees.
Background of the case:
In this case, the Claimant, Scoline Anyango Ojung’a moved to court to sue her employer Nairobi Women Hospital for wrongful and unlawful termination of her employment.
The Claimant was first engaged by the Respondent in April 2010 as an Internal Auditor and later advanced to the position of Hospital Manager, a position that she held until April 2018 when her employment was terminated. The Claimant was a practicing Seventh Day Adventist faith, and Saturdays are considered worship days. She therefore negotiated an arrangement with the Respondent, where she would work on the first Saturday of the month and commit the remaining Saturdays in the month to her worship. To compensate for the Saturdays that she was going to be off duty in any given month, the Claimant indicated her availability to work on Sundays and the parties settled for this arrangement in August 2016.
On 21st February 2018, the Respondent held a budget approval meeting where the budget for the Respondent’s Hurlingham branch failed to sail through. The branch was asked to make adjustments to the proposal and present a revised budget on 24th February 2018.
The Claimant, in line with the instructions, worked closely with her team to revise the budget statement. The Claimant ensured that the budget document was appropriately revised along the lines proposed by the budget approval committee and all that remained was to present the final script at the next meeting scheduled for 24th February 2018. However, the meeting of 24th February 2018 fell on a Saturday and she instructed one of her team members to present it on her behalf since it was her day of worship.
Meanwhile, the Claimant wrote an email to the Respondent’s management on 23rd February 2018 asking to be excused from the meeting of 24th February 2018 as the event coincided with her worship day and she had scheduled church activities on the same day. In addition, she also sent a text message to a member of the Respondent’s management on the subject. The Claimant’s request to be excused from the meeting was declined but she instead chose to respect the worship day and thus failed to turn up for the meeting. The Claimant’s contract was thereafter terminated due to her absence on the meeting of 24th February 2018.
The Respondent on the other hand did not dispute that the Claimant was a Seventh-Day Adventist or that they entered into an alternative agreement. However, they argued that the right to worship was not absolute and should be practiced reasonably to accommodate other needs. The Respondent argued that the process of making a budget was crucial and could not be delegated to any other team members. Furthermore, they argue that the Claimant was present at the meeting and did not object to the proposed date.
In light of the foregoing, the issue for determination before the Court was whether the employment relationship between the Claimant and the Respondent was lawfully terminated. In arriving at a determination, the Court found that the decision to terminate the Claimant’s contract arose from her failure to attend the budget meeting of 24th February 2018 and present her branch budget proposal contrary to the Respondent’s expectations.
The Court noted that matters of religion are taken rather seriously in Kenya, and that they are as universal as much as they are personal. The Court noted that the Constitution under Article 32 recognises the freedom of religion and guarantees every individual the freedom of conscience, religion, belief and opinion. Article 32 (4) of the Constitution goes on to state that no person shall be compelled to act or engage in any act contrary to their personal belief or religion. The Court further noted that as rightfully pointed out by the Respondent, while this right was not absolute, it could only be limited in accordance with Article 24 of the Constitution that provides that such limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
In making its decision, the Court stated that while it appreciated the fact that the meeting which the Claimant missed was a critical one, the claimant’s freedom of religion was of equal significance to her. The Constitution obligated the Respondent to respect and protect this right and it was up to the respondent to find a way of balancing its business interests with the employee’s freedom of religion without prejudicing the latter. The Court held that the fact that the Respondent terminated the Claimants’ employment for failure to attend the meeting that coincided with her prayer day was clearly unfair and, the termination was therefore unlawful, discriminatory, and a violation of the employee’s freedom of religion.
