1. The claimant, a union registered to represent workers in the commercial and food allied sector, alleging unfair /wrongful termination of the employment of their member, Kenneth Mwirigi M’twerandu, the grievant and ex-employee of the respondent, filed a memorandum of claim dated 11th January 2023 seeking the following various reliefs:-A. (i) Declare that the suspension, show cause and eventual termination of the grievant's services was unfair, wrongful and unlawful.
(ii) Orders the Respondent to honour the Recommendations by the Conciliator dated 5th January, 2022 by unconditionally reinstating the grievant to his previous position.
(iii) Order the Respondent to treat the services of the grievant, upon reinstatement, as continuous and as if the same were never interrupted.
(iv) Order the Respondent to pay the grievant, upon reinstatement, maximum compensation for unlawful, wrongful and unfair termination.
(v) Costs of the suit be granted to the Claimant.
OR
(B) In the alternative and where the court does not grant prayers under; 'A' above, the Claimant prays and seeks that this Court Do: -
(i) Issue an Order directing the Respondent to pay the grievant for the remainder of his 13 years and one month of service to retirement based on his last gross pay.
(ii) Award maximum compensation to the grievant for the "unlawful, action against him.
OR
(C) This Honorable court do:
Order the Respondent to treat the grievant as having been declared redundant, and:-
(ii) Order the Respondent to pay the grievant benefits under clause 27(1)-(ix) of the parties Collective Bargaining Agreement
iii) Award payment of maximum compensation for the unlawful, wrongful and unfair termination
(iii) Award Costs of the suit to the claimant.
(D) (i) That the Respondent be ordered to settle from their own funds all loans and interest which the grievant has been unable to service as a result of this unlawful termination in alleviating this burden on the grievant; or
(ii) An order for general damages be issued for violating the grievant's Constitutional and Labour rights.
(E) That in awarding either of prayers A, B, C & D above this Honourable Court be pleased to grant any other relief found fit, just and proper to meet the ends of justice.
F) An order do issue to the Directorate of Criminal Investigations to release call loques regarding the grievant's cell phone discussions on 31st December 2020.
2. The claim was filed together with a witness statement of the grievant dated 11th January 2023 and the list and bundle of documents dated 11th January 2023.
Response
3. The claim was opposed. The respondent relied on its amended memorandum of response dated 23rd August 2024, list and bundle of documents dated 2nd October 2024 and the witness statement of Julius Anami (RW1) dated 2nd October 2024.
Hearing and evidence
4. The case for both parties was heard on the 7th October 2024 .The grievant was CW1 , he testified on oath, adopted his witness statement evidence in chief, produced the bundle of documents as C-exh1-39 and was cross-examined by advocate for the Respondent, Ms Bhoke Inimah. The Respondent called Julias Anami as RW1. He testified on oath, adopted his witness statement as his evidence in chief, produced the documents for the respondent under list of documents dated 2nd October 2024 and was cross-examined by the Union Representative, Mr.Nyumba.
5. The parties filed written submissions after the hearing.
DETERMINATION
6. The court upon perusal of the claim and response and having heard the parties was of the considered opinion that the issues for determination in the claim were :-
• Whether the dismissal of the claimant from employment by the respondent was lawful and fair
• Whether the claimant was entitled to reliefs sought
Issue 1. Whether the dismissal of the claimant from employment by the respondent was lawful and fair
7. The threshold for termination of employment to be held as fair is according to the provisions co section 45(2) of the Employment Act to wit:-‘’45 (2) A termination of employment by an employer is unfair if the employer fails to prove—
(a) that the reason for the termination is valid;
(b) that the reason for the termination is a fair reason—
(i) related to the employees conduct, capacity or compatibility; or
(ii) based on the operational requirements of the employer; and
(c) that the employment was terminated in accordance with fair procedure.’’
8. Substantial fairness is related to the validity and fairness of the reason(s) for termination and whether the reason is related to the employee’s conduct, capacity or compatibility or based on the operational requirements of the employer(section 45(2) of the Employment Act). The burden of proof of the validity of the reason lies with the employer according to the provisions of section 43 of the Employment Act to wit:- ‘’43. Proof of reason for termination
(1) In any claim arising out of termination of a contract, the employer shall be required to prove the
reason or reasons for the termination, and where the employer fails to do so, the termination shall
be deemed to have been unfair within the meaning of section 45.
(2) The reason or reasons for termination of a contract are the matters that the employer at the time
of termination of the contract genuinely believed to exist, and which caused the employer to
terminate the services of the employee.’’
9. Procedural fairness is according to the provisions of section 41 of the of the Employment Act to wit :-
(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of
his choice present during this explanation.
(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the
employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear
and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.’’
10. The claimant union brought a claim for their member alleging he was terminated without a fair hearing in breach clause of the Recognition Agreement and clause 23(b) of the CBA on suspension and that there was no fair trial as the Respondent did not disclose evidence of the alleged sexual harassment to the grievant.
11. The Respondent stated that it issued the Grievant with a letter of termination dated 11th march 2021 where the employment was terminated on the ground of sexual harassment of 2 complainants. The Respondent in the letter relied on the disciplinary hearing of 23rd February 2021 via zoom and stated that the claimant was represented by Simon Ondeng , chief shop steward KBL, who was his personal representative of choice under the law and on the following documents:-
a. Investigative suspension letter dated 4th January 2021,
b. Two extension of suspension letters dated 3rd February 2021 and 2nd march 2021 respectively,
c. Notice to show cause letter dated 15th February 2021,
d. Response to the notice to show cause letter dated 18th February 2021.
e. Notice to attend disciplinary hearing dated 19th February 2021.
12. The Respondent stated that the reason for termination of the employment of the grievant was sexual harassment and evidence was produced on the procedural fairness.
13. The court proceeded to analyse the evidence and the law to make its decision on the fairness of the termination both on reasons and procedural fairness. The court was further guided by the provisions of section 45(5) of the Act in the analysis and decision of whether the termination was lawful (valid reasons ) and procedurally fair to wit:-
‘’(5) In deciding whether it was just and equitable for an employer to terminate the employment of
an employee, for the purposes of this section, a labour Officer, or the Employment and Labour Relations Court shall consider—
(a) the procedure adopted by the employer in reaching the decision to dismiss the employee, the communication of that decision to the employee and the handling of any appeal against the decision;
(b) the conduct and capability of the employee up to the date of termination;
(c) the extent to which the employer has complied with any statutory requirements connected with the termination, including the issuing of a certificate under section 51 and the procedural requirements set out in section 41;
(d) the previous practice of the employer in dealing with the type of circumstances which led to the termination; and
(e) the existence of any previous warning letters issued to the employee.’’
Claimant’s case summary and submissions
14. The claimant adopted the grievant’s (CW1) witness statement dated 11th January 2023 as his evidence in chief and produced annexed documents as C-exh1-38. CW1 was cross-examined by advocate of the Respondent.
15. The claimant union submitted that it was uncontroverted evidence that the grievant was ambushed without any evidence to appear for virtual meeting called by the Respondent while he was on his leave for the 4th of January 2021. He was on leave in December 2020 and was due to report back on the 4th of January 2021. He received a phone call from the Respondent on 4th January 2021 at 9.30 am and was informed not to resume duties and as well attend a meeting virtually at 3.00 pm same day. During the virtual meeting without disclosure of any evidence he was asked to record a statement on allegation which had not been communicated to him formally nor the alleged statement by accusers been given to him.
16. That the Claimant was suspended and the suspension letter did not disclose the complaint which it stated:- ‘’ we have received a grievance against you in which serious complaints have been made against your conduct. ‘’ The letter stated he could contact the Senior Human Resources Advisor if he needed any documents or information or needed to access working premises. The claimant stated that without disclosure of the nature of the complaints he had no basis to seek documents or information.
17. That the notice to show cause made allegations of sexual harassment but failed to reveal the identity of those alleged to have been harassed and the nature of their complaints. The show cause accused the grievant of dishonesty and concealing important information and failure to disclose material facts. These accusations were made in absence of any evidence. The grievant constantly requested in his statement of 5th January 2021 and in his response to show cause to be provided with evidence which was ignored.
18. The Claimant contended that contrary to clause 23 of the applicable CBA (period 1st march 2019- 28th February 2021) the grievant’s suspension exceeded 30 days. The CBA clause 23(b) provided for reinstatement of the employee after expiry of 30 days of suspension unless the investigation was by police or there was a case pending before a court of law. The exception did not apply to his case as he was not investigated by the police nor was there a case in court yet the suspension was extended for extra 37 days. That the grievant ought to have been reinstated after the expiry of 30 days in suspension.
19. The claimant union asserted that the complaint was processed in breach of the grievance procedure under clause 8 of the Recognition Agreement of 1st march 2019 to 28th February 2021 and submitted that there was no evidence of any employee having individually or through the shop floor stewards raised a complaint against the grievant.
20. The claimant submitted that contrary to the requirements of CBA, when the grievant was asked to record a statement on the 5th of January 2021 there was no evidence that this was done in the presence of the shop steward(C-exh 2) that the said statement was a nullity ab initio as per the CBA.
21. The claimant submitted that the grievant’s right to access information under Article 35 of the Constitution was infringed as he was not given any statements recorded by the alleged accusers or given evidence.
22. The Claimant submitted that at the appeal stage, the Respondnet submitted that the grievant mentioned Shirleen, Roslyin Netia and Judy in his letter of termination. Roselyn was named as having called the grievant while he was on leave and revealed of having heard that allegations being cooked against the appellant on sexual harassment. The grievant stated he had never harassed Shirleen and Judy. The three ladies were not availed to give evidence on this matter assuming they are those alleged to have been harassed and molested. That the grievant treated Roselyn's information as work place rumours and cannot then be alleged to have had knowledge and not disclosed as asserted by the Respondent.
23. The Claimant submitted that there was no record of the grievant having displayed wanting conduct and capability during the entirety of his 15 years of service. No warning or any type of reprimand was brought against him. There was no statement from any of his immediate supervisors or managers accusing him of sexually molesting or harassing any female employee.
24. The Claimant submitted that they reported trade dispute, the parties participated in conciliation mechanism and the conciliator, an experienced labour officer, made in depth findings and recommendations which the respondent threw into dustbin.
25. That there being no valid reason for the termination the newspaper cuttings produced by the claimant to prove gender bias and concerted effort to bridge the gender parity was not challenged (C-Exh 39 at pages 155-156 of the Claimant’s bundle of documents).
26. The claimant contended that this being a case of termination with the employee not at fault it could only have been a case of redundancy under section 40 of the Employment Act and clause 27 of the CBA of 1st March 2019 to 28th February 2021 was applicable.
Response case summary and submissions
27. The respondent relied on its amended memorandum of response dated 23rd August 2024, list and bundle of documents dated 2nd October 2024, and the witness statement of Julius Anami (RW1) dated 2nd October 2024.
28. The respondent submitted that it employed the claimant effective 1st January 2006 as a technical operator with a starting salary of Kshs. 47,714/- and at exit the consolidated salary was Kshs. 448,759.86 (R- annex 1).
29. That on or about December 2020 the respondent’s site manager informed the supply human resources business manager of allegations of sexual harassment made against the grievant by two female colleagues who worked closely with him in the Respondent’s brewing plant, the sexual harassment was alleged to have occurred on diverse dates from September 2020. That the allegations were taken seriously there being a statutory obligation on the respondent under section 6 of the Employment Act to at all times ensure the provision of a conducive working environment for its staff free from sexual harassment and protect the employees’ right to dignity and non-discrimination guaranteed under the Constitution.
30. That the respondent commenced investigations into the allegations against the grievant. In order to maintain a safe working environment the grievant was suspended from work pending the investigations. The respondent submitted that during investigations it was observed that the grievant made offers (which were rejected ) to two female colleagues in exchange for sexual favours and which offers included; money for shopping, offers for lunch and offers for payment of rent and accommodation all made with constant inappropriate confessions of love and at times with inappropriate physical conduct including giving forceful hugs and groping and that the grievant forcefully took a photograph of one of the female colleagues.
31. The respondent submitted that the impact of the grievant’s action was that; the working environment was not conducive for the two female colleagues. The female colleagues' right of dignity was infringed and they felt unsafe.
32. The Respondent stated that a notice to show cause was issued vide letter dated 15th February 2021(pages 11-12 of the Respondent bundle ), the grievant responded vide letter dated 18th February 2021 and denied the allegations(pages 13-14 of Respondent’s bundle) and a disciplinary hearing took place on 23rd February 2021(at pages 16-21 of Respondent’s bundle were the minutes of the disciplinary hearing) the grievant was found culpable and issued with summary a dismissal letter dated 11th March 2021. The grievant filed an appeal vide letter dated 17th March 2021 and indicated the names of the two female colleagues confirming he was fully aware of their identify. The appeal was found to disclose no new evidence and was dismissed.
33. The Respondent submitted that the claimant reported a trade dispute dated 5th January 2022 and the conciliator made recommendations which the respondent held to be excessive and biased and ignored its submissions.
34. The Respondent on the validity of the reasons summary relied on evidence of RW1 that the grievant was terminated from employment on account of gross misconduct as stated in the dismissal letter of sexually harassing two female colleagues in violation of Dignity at Work Policy, Sexual Harassment Policy as well as section 6 of the Employment Act.
35. The respondent submitted that it was uncontested that the allegations of sexual harassment were investigated. The grievant admitted to being interviewed in connection with the allegations. The respondent relied on section 43 of the Employment Act to submit it genuinely believed in the existence of sexual harassment by the grievant. The Respondent submitted that the Court should not take the place of the employer by determining whether it would have terminated the employment for the said reasons but should examine whether a reasonable employer in the same position would have found the grounds sufficient to terminate. The Respondent relied on the decision in Bamburi Cement ltd v Farid Mohammed (2016)e KLR where the Court of Appeal observed :- ‘’Indeed, it is the reasons for termination, if found to be unfair, that would lead to a consideration of what relief an employee is entitled to. The appellant was required to prove that at the time of termination of the contract of employment it genuinely believed that the respondent intended to defraud it by making a false claim. Was the reason for the termination valid or fair? We shall be guided in the answer to this question by the following passage from Halsbury’s Laws of England, 4th Ed. Vol. 16 (1B) paragraph 642 which was reproduced in CFC Stanbic Bank Limited vs. Danson Mwashako Mwakuwona, Civil Appeal No. 3 of 2014:
“...In adjudicating on the reasonableness of the employer's conduct, an employment tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts; it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts. The basis of this approach (the range of reasonable responses test) is that in many cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another quite reasonably take another; the function of a tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted . If the dismissal falls within the band, the dismissal is fair; but if the dismissal falls outside the band, it is unfair.”The question was answered differently in the Canadian case of Michael Dowling v Workplace safety and Insurance Board (2004) CAN LII where the court stated;
“It can be seen that the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional-dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship. This is a factual inquiry to be determined by a contextual examination of the nature and circumstances of the misconduct.”
Applying the above standard and bearing in mind the provisions of the Employment Act, the CBA and the appellant’s Employees’ Handbook, all of which emphasize the duty of confidentiality, honesty and reasonable care in the performance of the contract of employment, the respondent, by lodging a claim in 2012 for an injury that occurred in 1995 in a football match and alleging that it was caused by a slip while climbing a crane on a date he was not on duty, acted, in our view, dishonestly and in bad faith. While we entertain no doubt that indeed the respondent, for a long time suffered pain on the right knee, it is his attribution of that injury to a fresh cause that made the claim suspicious bearing in mind also the fact that no report of the fresh injury was made. The respondent admitted that, in view of his experience of over 24 years in the company, he knew the importance of reporting accidents whenever they occurred. Clause 11.7 of the Employees’ Handbook requires an employee who is injured at work to report the occurrence, however slight or minor immediately to the immediate supervisor.
On the basis of the foregoing, we think that the appellant discharged its burden of proving that the reason for the termination was valid and fair as it related to a proven misconduct by the respondent.’’
36. On procedural fairness, the respondent submitted that it complied with the procedure under section 41 of the Employment Act from issuance of show cause to the appeal as summarised above. The respondent submitted that the courts have considered the competing rights of the victims of sexual harassment and employees facing disciplinary action for sexual harassment. The respondent submitted that it was not in question that the grievant’s right to documentation was not absolute and the respondent had the right to balance it with the complainants’ right of privacy and confidentiality. That to determine whether an accused employee was given a fair hearing, the court must determine whether the employee was given sufficient information to understand the charge and put up a defence. The respondent relied on the decision by Justice O.N. Makau in Boniface Mzungu v Base Titanium Limited (2020)e KLR where the court observed:-
‘’The right of an accused Employee to documentation, in complaints of sexual harassment, is a complex right. Disciplinary hearing relating to sexual harassment cases is not an ordinary disciplinary hearing at the workplace. There are sensitivities that must be observed, to protect the integrity and confidentiality of the process, without compromising the call to fair administration of justice, to the victims and the villains of sexual harassment. The Respondent had an obligation to balance Claimant’s right to accessing documents in advance of the hearing, with the right of the complainants to confidentiality and protection against a backlash from the Claimant, who was in supervisory position over the complainants. The Court does not think the accused Employee’s right to documentation, before the disciplinary hearing, is an unqualified right.
Section 6 [2] of the Employment Act requires Employers who employ 20 or more Employees, to have a policy statement on sexual harassment. Section 6[3] requires that such policy statement, shall include inter alia, a statement that the Employer will not disclose the name of the complainant, or the circumstances related to the complaint to any person, except where necessary for the purpose of investigating the complaint or taking disciplinary measure in relation thereto’
Did he understand the charges? He did not state anywhere, at any time, that he did not understand the charges. He was advised majority of female Employees under his supervision had complained that he was sexually harassing them. In the letter to show cause, he was given the forms of sexual harassment alleged to have been practiced by him upon the Ladies under his supervision. These charges were communicated to the Claimant in black and white’’
DECISION ON ISSUE 1
37. The reason for the termination of the employment of the grievant by the respondent was given as sexual harassment. The claimant stated that the grievant was not given details of the allegations all through the termination process or any evidence, there was no compliance with the process under the recognition agreement requiring involvement of shop stewards during recording of statements and the suspension was in breach of the CBA hence the termination was unlawful and unfair. On other hand the Respondent stated that the show cause disclosed enough information for defence purpose stating it was obliged to balance the right of confidentiality and privacy of victim with that of the accused.
38. Section 6 [2] of the Employment Act requires Employers who employ 20 or more Employees, to have a policy statement on sexual harassment. Section 6[3] requires that such policy statement, shall include inter alia, a statement that the Employer will not disclose the name of the complainant, or the circumstances related to the complaint to any person, except where necessary for the purpose of investigating the complaint or taking disciplinary measure in relation thereto. The Respondent relied on this provision to justify the non-disclosure of evidence it held in support of the charges to the grievant.
39. The court upheld the jurisprudence flowing from the decision cited by the respondent in Boniface Mzungu v Base Titanium Limited (2020)e KLR that ‘’ The right of an accused Employee to documentation, in complaints of sexual harassment, is a complex right. Disciplinary hearing relating to sexual harassment cases is not an ordinary disciplinary hearing at the workplace. There are sensitivities that must be observed, to protect the integrity and confidentiality of the process, without compromising the call to fair administration of justice, to the victims and the villains of sexual harassment. The Respondent had an obligation to balance Claimant’s right to accessing documents in advance of the hearing, with the right of the complainants to confidentiality and protection against a backlash from the Claimant, who was in supervisory position over the complainants. The Court does not think the accused Employee’s right to documentation, before the disciplinary hearing, is an unqualified right.’’ Emphasis given.
40. The question before the court was whether the Respondent balanced the grievant ’s right to documentation with the complainants’ right to confidentiality and protection under section 6 of the Employment Act. In the case relied on by the Respondent(Boniface Mzungu v Base Titanium Limited (2020)e KLR) the court observed:-
’’ The Respondent balanced the Claimant’s right to documentation with the complainants’ right to confidentiality and protection against potential victimization, by advising the Claimant that full disclosure of the names of the complainants and their written complaints would be made at the hearing. The Claimant was reassured the he would be given adjournment if necessary, to enable him cross-examine the complainants and witnesses. He was not prejudiced. The reassurance was made in the letter from the Respondent to his then Advocates, dated 3rd May 2017. It was also communicated to the Claimant on the floor of the disciplinary hearing. The Claimant was made aware in the letter to show cause, that a majority of the female colleagues had complained against him. It was not necessary for the purpose of investigation and disciplinary hearing that the names of the complainants and their complaints were made known to the Claimant, before the hearing date.’’(emphasis given)
41. Section 6 of the Employment Act gives exemption to disclosure of evidence in sexual harassment cases by stating in section 6(3)b)v) :- ‘’(v) that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures in relation thereto.’’ The grievant was issued with letter dated 4th January 2021 for suspension for reasons of investigations which suspension was extended on the 3rd February 2021 to conclude the investigations. The grievant was issued with a show cause letter dated 15th February 2021 which referred to an internal investigation and the letter stated details of the sexual harassment female colleagues based at UDV. The respondent produced corrected minutes the earlier ones having been protested by the grievant for having misleading record which was harmful to his reputation by stating he was happily married and would start relations at work. That was said to be an error by the respondent and corrected. (The corrected minutes were produced aa pages 16-21 of the Respondent’s bundle of documents). The court observed that the attendance to the hearing included 2 investigators, the grievant and the shop steward and management. The complainants were not called for cross-examination like in Mzungu case. The court noted the remarks of the chairperson to the extent that the proceedings would be based on the letters to the employee and submissions received from the employee. There was no record of the investigators producing their investigation report or even being availed for cross-examination by the grievant. The shop steward led evidence to exonerate the employee.
42. The termination letter was dated 11th March 2021. In the appeal letter the grievant raised the issue of details of having taken unsolicited photos without the victims consent at a car parking which issue was not stated in the show cause. The court perused the report of the disciplinary hearing and observed the details of how the photo was taken was not disclosed at the hearing. It appeared for the first time in the termination letter (page 18 of the respondent bundle of documents). The termination letter referred to investigation findings yet the report was not tabled at the disciplinary hearing (see page 18 of the Respondent’s bundle).
43. The court, taking into consideration the foregoing findings holds that there was no balance between the rights of the complainants/victims of confidentiality/privacy and the right of the grievant to a fair procedural hearing before the decision of termination of his employment. There was no investigation report no any cross-examination at the hearing of the respondent’s potential witnesses being the complainants , the alleged site manager who reported the complaint or the investigator. The court held there was no basis of the Respondent’s finding that the grievant was culpable of the claims in the show cause letter. The grievant had served 15 good years without iota of disciplinary issue and deserved better treatment. The loss of a job earned over 15 years was a serious setback for the employee. The employment ought not have not be taken away from the grievant without established basis like it happened in this case.
44. The employer must balance the scales justly to protect the victim’s confidentiality/privacy with the employee’s right to fair hearing and protection of job. In the Mzungu case the employer was found to have balanced the rights of the victim and the employee as follows:- ‘’42. The Respondent balanced the Claimant’s right to documentation with the complainants’ right to confidentiality and protection against potential victimization, by advising the Claimant that full disclosure of the names of the complainants and their written complaints would be made at the hearing. The Claimant was reassured the he would be given adjournment if necessary, to enable him cross-examine the complainants and witnesses. He was not prejudiced. ‘’During cross-examination of the grievant by advocate for the Respondent told the court he was called by a colleague on rumours of the sexual harassment while on leave. The respondent relied on this disclosure by the grievant to state he had information on the claims. The grievant told the court he treated the call by the colleague as work place rumours. The court was of the opinion that the grievant could not be held to have relied on rumours to defend himself. It was the burden of the employer to provide the reason for termination according to to section 43 of the Employment Act and reasonably justify why it believed the grievant was culpable. The employee cannot assume why he is being terminated. The reasons must be explained and justified by the employer as per section 41 of the Employment Act. Fairness under section 41 of the Act would require where investigation of the reason was done by the employer, the investigation outcomes be disclosed to the employee facing possible dismissal, failing which the benefit of doubt would be accorded to the employee by the Court that the investigation outcome was in his favour. That is the case here.
45. Consequently, In the instant case the court finds the grievant’s rights were not catered for in the process of termination. As much as the court agrees he was not entitled to disclosure of complainants names and statements before the hearing, at the disciplinary hearing the Court held the grievant was entitled to disclosure of the investigation report, the complainant’s statements and if he wished to cross-examine them they be availed, to cross-examine the site manager who made the complaint on undisclosed dates in December 2020 and the investigators on their report pursuant to section 6 of the Employment act (supra). The Court found no evidence of alleged photos at all. At the hearing RW1 was asked, ‘’upto now you have not provided the claimant with evidence of the allegations.’’ Answer. ‘’The evidence was in the investigation report and not given to the individual.’’ The said report was not referred to at the disciplinary hearing and termination letter . It remained a top secret of the respondent relied on to dismiss the grievant . RW1 agreed there was no evidence disclosed in the show cause letter. During re-examination RW1 told the court the complaints were made to the line manager. The line manager was not called or even his complaint disclosed at the disciplinary hearing. The grievant who had no prior disciplinary issues in 15 years of service. The suspension was beyond 30 days on basis of investigation a violation of the CBA(1st March 2019-28th February 2021) clause 23(b)between the parties. The matter was not reported to the police. RW1 justified the suspension based on the sensitive nature of sexual harassment complaints.
46. The Court held that the grievant’s right to procedural fairness under section 41 of the Employment Act were violated for failure to be accorded information (statements on the complaint, investigation report alleged to have been the reason for the suspension, failure to produce complainants and the investigators for cross-examination)in support of accusations at the hearing and for suspension outside the CBA provisions. The process was tainted with injustice for the foregoing reasons. The court held that for the foregoing reasons the alleged sexual harassment was not proved according to section 43 of the Employment Act to have existed.
47. The court agreed on the test of a reasonable employer as stated in the following passage from Halsbury’s Laws of England, 4th Ed. Vol. 16 (1B) paragraph 642 which was reproduced in CFC Stanbic Bank Limited vs. Danson Mwashako Mwakuwona, Civil Appeal No. 3 of 2014:
“...In adjudicating on the reasonableness of the employer's conduct, an employment tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts; it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts. The basis of this approach (the range of reasonable responses test) is that in many cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another quite reasonably take another; the function of a tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted . If the dismissal falls within the band, the dismissal is fair; but if the dismissal falls outside the band, it is unfair.”(see also British Leyland (U.K)Ltd v Swift, 1980] EWCA Civ J1017-8 )The court held that a reasonable employer would have acted like Base Titanium Limited in Boniface Mzungu v Base Titanium Limited (2020)e KLR by balancing the right of the victim/complainant of sexual harassment with that of the employee to fair procedural hearing where the evidence of the employer on the sexual harassment is disclosed to the employee and tested at the disciplinary hearing. This was not the case by the Respondent who kept the employee in total darkness all through the process despite having investigated the complaint and alleged to have received complaInt by the line manager. The alleged complaint statements and the investigation report were never availed. The court held that the respondent did not act as a reasonable employer who is obliged in such cases to balance the right to confidentiality of the victim/complainant of sexual harassment with that of the accused employee to fair procedural hearing and right not to have their job taken away without justification. In the upshot the termination of the employment of the grievant was held to have been wrongful and unfair.
Issue 2. Whether the claimant is entitled reliefs sought.
48. The claimant sought the following reliefs:-
A) (i) Declare that the suspension, show cause and eventual termination of the grievant's services was unfair, wrongful and unlawful.
(ii) Orders the Respondent to honour the Recommendations by the Conciliator dated 5th January, 2022 by unconditionally reinstating the grievant to his previous position.
(iii) Order the Respondent to treat the services of the grievant, upon reinstatement, as continuous and as if the same were never interrupted.
(iv) Order the Respondent to pay the grievant, upon reinstatement, maximum compensation for unlawful, wrongful and unfair termination.
(v) Costs of the suit be granted to the Claimant.
OR
(B) In the alternative and where the court does not grant prayers under; 'A' above, the Claimant prays and seeks that this Court Do: -
(i) Issue an Order directing the Respondent to pay the grievant for the remainder of his 13 years and one month of service to retirement based on his last gross pay.
(ii) Award maximum compensation to the grievant for the "unlawful, action against him.
OR
(C) This Honorable court do:
i)Order the Respondent to treat the grievant as having been declared redundant, and:-
(ii) Order the Respondent to pay the grievant benefits under clause 27(1)-(ix) of the parties Collective Bargaining Agreement
(iii) Award payment of maximum compensation for the unlawful, wrongful and unfair termination
(iii) Award Costs of the suit to the claimant.
(D) (i) That the Respondent be ordered to settle from their own funds all loans and interest which the grievant has been unable to service as a result of this unlawful termination in alleviating this burden on the grievant; or
(ii) An order for general damages be issued for violating the grievant's Constitutional and Labour rights.
(E) That in awarding either of prayers A, B, C & D above this Honourable Court be pleased to grant any other relief found fit, just and proper to meet the ends of justice.
F) An order do issue to the Directorate of Criminal Investigations to release call loques regarding the grievant's cell phone discussions on 31st December, 2020.
Decisions on remedies
49. Section 50 of the Employment Act obliges the court on finding unfair termination to be guided by section 49 of the Act on remedies to award. section 49 provides :-
‘’Remedies for wrongful dismissal and unfair termination
(1) Where in the opinion of a labour officer summary dismissal or termination of a contract of an
employee is unjustified, the labour officer may recommend to the employer to pay to the employee
any or all of the following—
(a) the wages which the employee would have earned had the employee been given the period of
notice to which he was entitled under this Act or his contract of service;
(b) where dismissal terminates the contract before the completion of any service upon which
the employee's wages became due, the proportion of the wage due for the period of time
for which the employee has worked; and any other loss consequent upon the dismissal and
arising between the date of dismissal and the date of expiry of the period of notice referred to
in paragraph (a) which the employee would have been entitled to by virtue of the contract; or
(c) the equivalent of a number of months wages or salary not exceeding twelve months based on
the gross monthly wage or salary of the employee at the time of dismissal.
(2) Any payments made by the employer under this section shall be subject to statutory deductions.
(3) Where in the opinion of a labour officer an employee's summary dismissal or termination of
employment was unfair, the labour officer may recommend to the employer to—
(a) reinstate the employee and treat the employee in all respects as if the employees
employment had not been terminated; or
(b) re-engage the employee in work comparable to that in which the employee was employed
prior to his dismissal, or other reasonably suitable work, at the same wage.’’
On claim for reinstatement
50. The grievant was dismissed from employment on 11th March 2021. Three years have elapsed since the termination. Section 12(3) of the Employment and Labour Relations Act prohibits the reinstatement of employee to work on expiry of three years past termination of service as follows:- ‘’(vii) an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose
under circumstances contemplated under any written law; or’’ The Court agreed with the respondent the relief of reinstatement was not available to the grievant under the law.
Claim for Notice pay
51. The court having found unfair termination the grievant was entitled to notice pay under the applicable CBA during the period of service which the court finds was the CBA of 1st March 2019 to 28 February 2021. The disciplinary hearing leading to the termination was held on the 23rd February 2021 and the termination letter issued 11th March 2021. The claimant thus served under the said CBA then next one having been signed on the 30th June 2021. The letter of termination provided for terminal dues of 4 months which the claimant produced the May 2021 pay slip which indicated the notice pay was payable under the termination(C-Exh 38). That prayer is spent.
Reliefs sought for remainder of service till retirement and an order to settle loans.
52. The court noted the conciliator had recommended these awards. The court agreed with the respondent that these are not provided for as remedies under section 49 of the Employment Act and are declined.
Prayer for Order the Respondent to treat the grievant as having been declared redundant, and:- Order the Respondent to pay the grievant benefits under clause 27(1)-(ix) of the parties Collective Bargaining Agreement.
53. The claimant stated that since the termination was not based on the fault of the grievant he should be treated as if declared redundant and paid the benefits under clause 27 of the CBA expiring in February 2021. The respondent opposed the prayer and stated that the grievant was not declared redundant. The court declined the prayer on the basis that redundancy is a special procedure under section 40 of the Employment Act and cannot be assumed to have happened simply because the employee was terminated for no fault. If the employee was not at fault in normal termination that is treated as unfair termination and the remedies under section 49 of the Employment Act apply.
Claim for Compensation for unlawful and unfair termination
54. The claimant sought maximum compensation for the unlawful and unfair termination
The court under section 49(1)c) of the Employment Act is empowered to award compensation as follows:- ‘’(c) the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.’’
55. The court in deciding on the award is further guided to consider the following under section 49(4):-
(a) the wishes of the employee;
(b) the circumstances in which the termination took place, including the extent, if any, to which
the employee caused or contributed to the termination; and
(c) the practicability of recommending reinstatement or re-engagement;
(d) the common law principle that there should be no order for specific performance in a
contract for service except in very exceptional circumstances;
(e) the employee's length of service with the employer;
(f) the reasonable expectation of the employee as to the length of time for which his
employment with that employer might have continued but for the termination;
(g) the opportunities available to the employee for securing comparable or suitable employment
with another employer;
(h) the value of any severance payable by law;
(i) the right to press claims or any unpaid wages, expenses or other claims owing to the
employee;
(j) any expenses reasonable incurred by the employee as a consequence of the termination;
(k) any conduct of the employee which to any extent caused or contributed to the termination;
(l) any failure by the employee to reasonably mitigate the losses attributable to the unjustified
termination; and
(m) any compensation, including ex-gratia payment, in respect of termination of employment
paid by the employer and received by the employee.’’
56. The grievant in the instant case had worked for the respondent since 1st January 2006 to date of termination of 11th March 2021. He was on his 15th year of service without any prior disciplinary record. The court opined he was a star employee. The court found there was no basis of his termination for lack of justified reason and the procedure was unfair. The order of reinstatement was not available. There was no reason why the employee would not have served to retirement having reached 15 years . The Court found violation of the terms of CBA by the Respondent. The court considered there were slim chances of the grievant securing comparable or suitable employment with another employer. The court taking into consideration the foregoing found this was a case where the claimant deserved the maximum compensation equivalent of 12 months’ gross salary which is awarded. The respondent submitted that the grievant was earning consolidated salary of Kshs. 448759.86 which was not disputed. Compensation was awarded thus 12 months x 448759.86 total award of Kshs. 5,385,118.32
57. On the claim for violation of labour rights the court finds the compensation awarded is for violation of the same labour rights under Employment Act. The compensation for equivalent of 12 months’ salary sufficed to cover the unlawful and unfair termination and the violation of the labour rights.
58. In conclusion the Court held the claim as merited and entered judgment in favour of the claimant on behalf of the grievant against the respondent as follows:-
a. The termination of the employment of the grievant by the respondent is held to have been unlawful and unfair
b. Compensation for unfair termination Kshs. 5,385,118.32 payable subject to statutory deductions.
c. Interest at court rates from the date of judgment until payment in full.
d. Costs of the suit.
59. Stay of 30 days.
60. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 21st DAY OF FEBRUARY, 2025.
(ii) Orders the Respondent to honour the Recommendations by the Conciliator dated 5th January, 2022 by unconditionally reinstating the grievant to his previous position.
(iii) Order the Respondent to treat the services of the grievant, upon reinstatement, as continuous and as if the same were never interrupted.
(iv) Order the Respondent to pay the grievant, upon reinstatement, maximum compensation for unlawful, wrongful and unfair termination.
(v) Costs of the suit be granted to the Claimant.
OR
(B) In the alternative and where the court does not grant prayers under; 'A' above, the Claimant prays and seeks that this Court Do: -
(i) Issue an Order directing the Respondent to pay the grievant for the remainder of his 13 years and one month of service to retirement based on his last gross pay.
(ii) Award maximum compensation to the grievant for the "unlawful, action against him.
OR
(C) This Honorable court do:
Order the Respondent to treat the grievant as having been declared redundant, and:-
(ii) Order the Respondent to pay the grievant benefits under clause 27(1)-(ix) of the parties Collective Bargaining Agreement
iii) Award payment of maximum compensation for the unlawful, wrongful and unfair termination
(iii) Award Costs of the suit to the claimant.
(D) (i) That the Respondent be ordered to settle from their own funds all loans and interest which the grievant has been unable to service as a result of this unlawful termination in alleviating this burden on the grievant; or
(ii) An order for general damages be issued for violating the grievant's Constitutional and Labour rights.
(E) That in awarding either of prayers A, B, C & D above this Honourable Court be pleased to grant any other relief found fit, just and proper to meet the ends of justice.
F) An order do issue to the Directorate of Criminal Investigations to release call loques regarding the grievant's cell phone discussions on 31st December 2020.
2. The claim was filed together with a witness statement of the grievant dated 11th January 2023 and the list and bundle of documents dated 11th January 2023.
Response
3. The claim was opposed. The respondent relied on its amended memorandum of response dated 23rd August 2024, list and bundle of documents dated 2nd October 2024 and the witness statement of Julius Anami (RW1) dated 2nd October 2024.
Hearing and evidence
4. The case for both parties was heard on the 7th October 2024 .The grievant was CW1 , he testified on oath, adopted his witness statement evidence in chief, produced the bundle of documents as C-exh1-39 and was cross-examined by advocate for the Respondent, Ms Bhoke Inimah. The Respondent called Julias Anami as RW1. He testified on oath, adopted his witness statement as his evidence in chief, produced the documents for the respondent under list of documents dated 2nd October 2024 and was cross-examined by the Union Representative, Mr.Nyumba.
5. The parties filed written submissions after the hearing.
DETERMINATION
6. The court upon perusal of the claim and response and having heard the parties was of the considered opinion that the issues for determination in the claim were :-
• Whether the dismissal of the claimant from employment by the respondent was lawful and fair
• Whether the claimant was entitled to reliefs sought
Issue 1. Whether the dismissal of the claimant from employment by the respondent was lawful and fair
7. The threshold for termination of employment to be held as fair is according to the provisions co section 45(2) of the Employment Act to wit:-‘’45 (2) A termination of employment by an employer is unfair if the employer fails to prove—
(a) that the reason for the termination is valid;
(b) that the reason for the termination is a fair reason—
(i) related to the employees conduct, capacity or compatibility; or
(ii) based on the operational requirements of the employer; and
(c) that the employment was terminated in accordance with fair procedure.’’
8. Substantial fairness is related to the validity and fairness of the reason(s) for termination and whether the reason is related to the employee’s conduct, capacity or compatibility or based on the operational requirements of the employer(section 45(2) of the Employment Act). The burden of proof of the validity of the reason lies with the employer according to the provisions of section 43 of the Employment Act to wit:- ‘’43. Proof of reason for termination
(1) In any claim arising out of termination of a contract, the employer shall be required to prove the
reason or reasons for the termination, and where the employer fails to do so, the termination shall
be deemed to have been unfair within the meaning of section 45.
(2) The reason or reasons for termination of a contract are the matters that the employer at the time
of termination of the contract genuinely believed to exist, and which caused the employer to
terminate the services of the employee.’’
9. Procedural fairness is according to the provisions of section 41 of the of the Employment Act to wit :-
(1) Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of
his choice present during this explanation.
(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the
employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear
and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.’’
10. The claimant union brought a claim for their member alleging he was terminated without a fair hearing in breach clause of the Recognition Agreement and clause 23(b) of the CBA on suspension and that there was no fair trial as the Respondent did not disclose evidence of the alleged sexual harassment to the grievant.
11. The Respondent stated that it issued the Grievant with a letter of termination dated 11th march 2021 where the employment was terminated on the ground of sexual harassment of 2 complainants. The Respondent in the letter relied on the disciplinary hearing of 23rd February 2021 via zoom and stated that the claimant was represented by Simon Ondeng , chief shop steward KBL, who was his personal representative of choice under the law and on the following documents:-
a. Investigative suspension letter dated 4th January 2021,
b. Two extension of suspension letters dated 3rd February 2021 and 2nd march 2021 respectively,
c. Notice to show cause letter dated 15th February 2021,
d. Response to the notice to show cause letter dated 18th February 2021.
e. Notice to attend disciplinary hearing dated 19th February 2021.
12. The Respondent stated that the reason for termination of the employment of the grievant was sexual harassment and evidence was produced on the procedural fairness.
13. The court proceeded to analyse the evidence and the law to make its decision on the fairness of the termination both on reasons and procedural fairness. The court was further guided by the provisions of section 45(5) of the Act in the analysis and decision of whether the termination was lawful (valid reasons ) and procedurally fair to wit:-
‘’(5) In deciding whether it was just and equitable for an employer to terminate the employment of
an employee, for the purposes of this section, a labour Officer, or the Employment and Labour Relations Court shall consider—
(a) the procedure adopted by the employer in reaching the decision to dismiss the employee, the communication of that decision to the employee and the handling of any appeal against the decision;
(b) the conduct and capability of the employee up to the date of termination;
(c) the extent to which the employer has complied with any statutory requirements connected with the termination, including the issuing of a certificate under section 51 and the procedural requirements set out in section 41;
(d) the previous practice of the employer in dealing with the type of circumstances which led to the termination; and
(e) the existence of any previous warning letters issued to the employee.’’
Claimant’s case summary and submissions
14. The claimant adopted the grievant’s (CW1) witness statement dated 11th January 2023 as his evidence in chief and produced annexed documents as C-exh1-38. CW1 was cross-examined by advocate of the Respondent.
15. The claimant union submitted that it was uncontroverted evidence that the grievant was ambushed without any evidence to appear for virtual meeting called by the Respondent while he was on his leave for the 4th of January 2021. He was on leave in December 2020 and was due to report back on the 4th of January 2021. He received a phone call from the Respondent on 4th January 2021 at 9.30 am and was informed not to resume duties and as well attend a meeting virtually at 3.00 pm same day. During the virtual meeting without disclosure of any evidence he was asked to record a statement on allegation which had not been communicated to him formally nor the alleged statement by accusers been given to him.
16. That the Claimant was suspended and the suspension letter did not disclose the complaint which it stated:- ‘’ we have received a grievance against you in which serious complaints have been made against your conduct. ‘’ The letter stated he could contact the Senior Human Resources Advisor if he needed any documents or information or needed to access working premises. The claimant stated that without disclosure of the nature of the complaints he had no basis to seek documents or information.
17. That the notice to show cause made allegations of sexual harassment but failed to reveal the identity of those alleged to have been harassed and the nature of their complaints. The show cause accused the grievant of dishonesty and concealing important information and failure to disclose material facts. These accusations were made in absence of any evidence. The grievant constantly requested in his statement of 5th January 2021 and in his response to show cause to be provided with evidence which was ignored.
18. The Claimant contended that contrary to clause 23 of the applicable CBA (period 1st march 2019- 28th February 2021) the grievant’s suspension exceeded 30 days. The CBA clause 23(b) provided for reinstatement of the employee after expiry of 30 days of suspension unless the investigation was by police or there was a case pending before a court of law. The exception did not apply to his case as he was not investigated by the police nor was there a case in court yet the suspension was extended for extra 37 days. That the grievant ought to have been reinstated after the expiry of 30 days in suspension.
19. The claimant union asserted that the complaint was processed in breach of the grievance procedure under clause 8 of the Recognition Agreement of 1st march 2019 to 28th February 2021 and submitted that there was no evidence of any employee having individually or through the shop floor stewards raised a complaint against the grievant.
20. The claimant submitted that contrary to the requirements of CBA, when the grievant was asked to record a statement on the 5th of January 2021 there was no evidence that this was done in the presence of the shop steward(C-exh 2) that the said statement was a nullity ab initio as per the CBA.
21. The claimant submitted that the grievant’s right to access information under Article 35 of the Constitution was infringed as he was not given any statements recorded by the alleged accusers or given evidence.
22. The Claimant submitted that at the appeal stage, the Respondnet submitted that the grievant mentioned Shirleen, Roslyin Netia and Judy in his letter of termination. Roselyn was named as having called the grievant while he was on leave and revealed of having heard that allegations being cooked against the appellant on sexual harassment. The grievant stated he had never harassed Shirleen and Judy. The three ladies were not availed to give evidence on this matter assuming they are those alleged to have been harassed and molested. That the grievant treated Roselyn's information as work place rumours and cannot then be alleged to have had knowledge and not disclosed as asserted by the Respondent.
23. The Claimant submitted that there was no record of the grievant having displayed wanting conduct and capability during the entirety of his 15 years of service. No warning or any type of reprimand was brought against him. There was no statement from any of his immediate supervisors or managers accusing him of sexually molesting or harassing any female employee.
24. The Claimant submitted that they reported trade dispute, the parties participated in conciliation mechanism and the conciliator, an experienced labour officer, made in depth findings and recommendations which the respondent threw into dustbin.
25. That there being no valid reason for the termination the newspaper cuttings produced by the claimant to prove gender bias and concerted effort to bridge the gender parity was not challenged (C-Exh 39 at pages 155-156 of the Claimant’s bundle of documents).
26. The claimant contended that this being a case of termination with the employee not at fault it could only have been a case of redundancy under section 40 of the Employment Act and clause 27 of the CBA of 1st March 2019 to 28th February 2021 was applicable.
Response case summary and submissions
27. The respondent relied on its amended memorandum of response dated 23rd August 2024, list and bundle of documents dated 2nd October 2024, and the witness statement of Julius Anami (RW1) dated 2nd October 2024.
28. The respondent submitted that it employed the claimant effective 1st January 2006 as a technical operator with a starting salary of Kshs. 47,714/- and at exit the consolidated salary was Kshs. 448,759.86 (R- annex 1).
29. That on or about December 2020 the respondent’s site manager informed the supply human resources business manager of allegations of sexual harassment made against the grievant by two female colleagues who worked closely with him in the Respondent’s brewing plant, the sexual harassment was alleged to have occurred on diverse dates from September 2020. That the allegations were taken seriously there being a statutory obligation on the respondent under section 6 of the Employment Act to at all times ensure the provision of a conducive working environment for its staff free from sexual harassment and protect the employees’ right to dignity and non-discrimination guaranteed under the Constitution.
30. That the respondent commenced investigations into the allegations against the grievant. In order to maintain a safe working environment the grievant was suspended from work pending the investigations. The respondent submitted that during investigations it was observed that the grievant made offers (which were rejected ) to two female colleagues in exchange for sexual favours and which offers included; money for shopping, offers for lunch and offers for payment of rent and accommodation all made with constant inappropriate confessions of love and at times with inappropriate physical conduct including giving forceful hugs and groping and that the grievant forcefully took a photograph of one of the female colleagues.
31. The respondent submitted that the impact of the grievant’s action was that; the working environment was not conducive for the two female colleagues. The female colleagues' right of dignity was infringed and they felt unsafe.
32. The Respondent stated that a notice to show cause was issued vide letter dated 15th February 2021(pages 11-12 of the Respondent bundle ), the grievant responded vide letter dated 18th February 2021 and denied the allegations(pages 13-14 of Respondent’s bundle) and a disciplinary hearing took place on 23rd February 2021(at pages 16-21 of Respondent’s bundle were the minutes of the disciplinary hearing) the grievant was found culpable and issued with summary a dismissal letter dated 11th March 2021. The grievant filed an appeal vide letter dated 17th March 2021 and indicated the names of the two female colleagues confirming he was fully aware of their identify. The appeal was found to disclose no new evidence and was dismissed.
33. The Respondent submitted that the claimant reported a trade dispute dated 5th January 2022 and the conciliator made recommendations which the respondent held to be excessive and biased and ignored its submissions.
34. The Respondent on the validity of the reasons summary relied on evidence of RW1 that the grievant was terminated from employment on account of gross misconduct as stated in the dismissal letter of sexually harassing two female colleagues in violation of Dignity at Work Policy, Sexual Harassment Policy as well as section 6 of the Employment Act.
35. The respondent submitted that it was uncontested that the allegations of sexual harassment were investigated. The grievant admitted to being interviewed in connection with the allegations. The respondent relied on section 43 of the Employment Act to submit it genuinely believed in the existence of sexual harassment by the grievant. The Respondent submitted that the Court should not take the place of the employer by determining whether it would have terminated the employment for the said reasons but should examine whether a reasonable employer in the same position would have found the grounds sufficient to terminate. The Respondent relied on the decision in Bamburi Cement ltd v Farid Mohammed (2016)e KLR where the Court of Appeal observed :- ‘’Indeed, it is the reasons for termination, if found to be unfair, that would lead to a consideration of what relief an employee is entitled to. The appellant was required to prove that at the time of termination of the contract of employment it genuinely believed that the respondent intended to defraud it by making a false claim. Was the reason for the termination valid or fair? We shall be guided in the answer to this question by the following passage from Halsbury’s Laws of England, 4th Ed. Vol. 16 (1B) paragraph 642 which was reproduced in CFC Stanbic Bank Limited vs. Danson Mwashako Mwakuwona, Civil Appeal No. 3 of 2014:
“...In adjudicating on the reasonableness of the employer's conduct, an employment tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts; it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts. The basis of this approach (the range of reasonable responses test) is that in many cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another quite reasonably take another; the function of a tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted . If the dismissal falls within the band, the dismissal is fair; but if the dismissal falls outside the band, it is unfair.”The question was answered differently in the Canadian case of Michael Dowling v Workplace safety and Insurance Board (2004) CAN LII where the court stated;
“It can be seen that the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional-dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship. This is a factual inquiry to be determined by a contextual examination of the nature and circumstances of the misconduct.”
Applying the above standard and bearing in mind the provisions of the Employment Act, the CBA and the appellant’s Employees’ Handbook, all of which emphasize the duty of confidentiality, honesty and reasonable care in the performance of the contract of employment, the respondent, by lodging a claim in 2012 for an injury that occurred in 1995 in a football match and alleging that it was caused by a slip while climbing a crane on a date he was not on duty, acted, in our view, dishonestly and in bad faith. While we entertain no doubt that indeed the respondent, for a long time suffered pain on the right knee, it is his attribution of that injury to a fresh cause that made the claim suspicious bearing in mind also the fact that no report of the fresh injury was made. The respondent admitted that, in view of his experience of over 24 years in the company, he knew the importance of reporting accidents whenever they occurred. Clause 11.7 of the Employees’ Handbook requires an employee who is injured at work to report the occurrence, however slight or minor immediately to the immediate supervisor.
On the basis of the foregoing, we think that the appellant discharged its burden of proving that the reason for the termination was valid and fair as it related to a proven misconduct by the respondent.’’
36. On procedural fairness, the respondent submitted that it complied with the procedure under section 41 of the Employment Act from issuance of show cause to the appeal as summarised above. The respondent submitted that the courts have considered the competing rights of the victims of sexual harassment and employees facing disciplinary action for sexual harassment. The respondent submitted that it was not in question that the grievant’s right to documentation was not absolute and the respondent had the right to balance it with the complainants’ right of privacy and confidentiality. That to determine whether an accused employee was given a fair hearing, the court must determine whether the employee was given sufficient information to understand the charge and put up a defence. The respondent relied on the decision by Justice O.N. Makau in Boniface Mzungu v Base Titanium Limited (2020)e KLR where the court observed:-
‘’The right of an accused Employee to documentation, in complaints of sexual harassment, is a complex right. Disciplinary hearing relating to sexual harassment cases is not an ordinary disciplinary hearing at the workplace. There are sensitivities that must be observed, to protect the integrity and confidentiality of the process, without compromising the call to fair administration of justice, to the victims and the villains of sexual harassment. The Respondent had an obligation to balance Claimant’s right to accessing documents in advance of the hearing, with the right of the complainants to confidentiality and protection against a backlash from the Claimant, who was in supervisory position over the complainants. The Court does not think the accused Employee’s right to documentation, before the disciplinary hearing, is an unqualified right.
Section 6 [2] of the Employment Act requires Employers who employ 20 or more Employees, to have a policy statement on sexual harassment. Section 6[3] requires that such policy statement, shall include inter alia, a statement that the Employer will not disclose the name of the complainant, or the circumstances related to the complaint to any person, except where necessary for the purpose of investigating the complaint or taking disciplinary measure in relation thereto’
Did he understand the charges? He did not state anywhere, at any time, that he did not understand the charges. He was advised majority of female Employees under his supervision had complained that he was sexually harassing them. In the letter to show cause, he was given the forms of sexual harassment alleged to have been practiced by him upon the Ladies under his supervision. These charges were communicated to the Claimant in black and white’’
DECISION ON ISSUE 1
37. The reason for the termination of the employment of the grievant by the respondent was given as sexual harassment. The claimant stated that the grievant was not given details of the allegations all through the termination process or any evidence, there was no compliance with the process under the recognition agreement requiring involvement of shop stewards during recording of statements and the suspension was in breach of the CBA hence the termination was unlawful and unfair. On other hand the Respondent stated that the show cause disclosed enough information for defence purpose stating it was obliged to balance the right of confidentiality and privacy of victim with that of the accused.
38. Section 6 [2] of the Employment Act requires Employers who employ 20 or more Employees, to have a policy statement on sexual harassment. Section 6[3] requires that such policy statement, shall include inter alia, a statement that the Employer will not disclose the name of the complainant, or the circumstances related to the complaint to any person, except where necessary for the purpose of investigating the complaint or taking disciplinary measure in relation thereto. The Respondent relied on this provision to justify the non-disclosure of evidence it held in support of the charges to the grievant.
39. The court upheld the jurisprudence flowing from the decision cited by the respondent in Boniface Mzungu v Base Titanium Limited (2020)e KLR that ‘’ The right of an accused Employee to documentation, in complaints of sexual harassment, is a complex right. Disciplinary hearing relating to sexual harassment cases is not an ordinary disciplinary hearing at the workplace. There are sensitivities that must be observed, to protect the integrity and confidentiality of the process, without compromising the call to fair administration of justice, to the victims and the villains of sexual harassment. The Respondent had an obligation to balance Claimant’s right to accessing documents in advance of the hearing, with the right of the complainants to confidentiality and protection against a backlash from the Claimant, who was in supervisory position over the complainants. The Court does not think the accused Employee’s right to documentation, before the disciplinary hearing, is an unqualified right.’’ Emphasis given.
40. The question before the court was whether the Respondent balanced the grievant ’s right to documentation with the complainants’ right to confidentiality and protection under section 6 of the Employment Act. In the case relied on by the Respondent(Boniface Mzungu v Base Titanium Limited (2020)e KLR) the court observed:-
’’ The Respondent balanced the Claimant’s right to documentation with the complainants’ right to confidentiality and protection against potential victimization, by advising the Claimant that full disclosure of the names of the complainants and their written complaints would be made at the hearing. The Claimant was reassured the he would be given adjournment if necessary, to enable him cross-examine the complainants and witnesses. He was not prejudiced. The reassurance was made in the letter from the Respondent to his then Advocates, dated 3rd May 2017. It was also communicated to the Claimant on the floor of the disciplinary hearing. The Claimant was made aware in the letter to show cause, that a majority of the female colleagues had complained against him. It was not necessary for the purpose of investigation and disciplinary hearing that the names of the complainants and their complaints were made known to the Claimant, before the hearing date.’’(emphasis given)
41. Section 6 of the Employment Act gives exemption to disclosure of evidence in sexual harassment cases by stating in section 6(3)b)v) :- ‘’(v) that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures in relation thereto.’’ The grievant was issued with letter dated 4th January 2021 for suspension for reasons of investigations which suspension was extended on the 3rd February 2021 to conclude the investigations. The grievant was issued with a show cause letter dated 15th February 2021 which referred to an internal investigation and the letter stated details of the sexual harassment female colleagues based at UDV. The respondent produced corrected minutes the earlier ones having been protested by the grievant for having misleading record which was harmful to his reputation by stating he was happily married and would start relations at work. That was said to be an error by the respondent and corrected. (The corrected minutes were produced aa pages 16-21 of the Respondent’s bundle of documents). The court observed that the attendance to the hearing included 2 investigators, the grievant and the shop steward and management. The complainants were not called for cross-examination like in Mzungu case. The court noted the remarks of the chairperson to the extent that the proceedings would be based on the letters to the employee and submissions received from the employee. There was no record of the investigators producing their investigation report or even being availed for cross-examination by the grievant. The shop steward led evidence to exonerate the employee.
42. The termination letter was dated 11th March 2021. In the appeal letter the grievant raised the issue of details of having taken unsolicited photos without the victims consent at a car parking which issue was not stated in the show cause. The court perused the report of the disciplinary hearing and observed the details of how the photo was taken was not disclosed at the hearing. It appeared for the first time in the termination letter (page 18 of the respondent bundle of documents). The termination letter referred to investigation findings yet the report was not tabled at the disciplinary hearing (see page 18 of the Respondent’s bundle).
43. The court, taking into consideration the foregoing findings holds that there was no balance between the rights of the complainants/victims of confidentiality/privacy and the right of the grievant to a fair procedural hearing before the decision of termination of his employment. There was no investigation report no any cross-examination at the hearing of the respondent’s potential witnesses being the complainants , the alleged site manager who reported the complaint or the investigator. The court held there was no basis of the Respondent’s finding that the grievant was culpable of the claims in the show cause letter. The grievant had served 15 good years without iota of disciplinary issue and deserved better treatment. The loss of a job earned over 15 years was a serious setback for the employee. The employment ought not have not be taken away from the grievant without established basis like it happened in this case.
44. The employer must balance the scales justly to protect the victim’s confidentiality/privacy with the employee’s right to fair hearing and protection of job. In the Mzungu case the employer was found to have balanced the rights of the victim and the employee as follows:- ‘’42. The Respondent balanced the Claimant’s right to documentation with the complainants’ right to confidentiality and protection against potential victimization, by advising the Claimant that full disclosure of the names of the complainants and their written complaints would be made at the hearing. The Claimant was reassured the he would be given adjournment if necessary, to enable him cross-examine the complainants and witnesses. He was not prejudiced. ‘’During cross-examination of the grievant by advocate for the Respondent told the court he was called by a colleague on rumours of the sexual harassment while on leave. The respondent relied on this disclosure by the grievant to state he had information on the claims. The grievant told the court he treated the call by the colleague as work place rumours. The court was of the opinion that the grievant could not be held to have relied on rumours to defend himself. It was the burden of the employer to provide the reason for termination according to to section 43 of the Employment Act and reasonably justify why it believed the grievant was culpable. The employee cannot assume why he is being terminated. The reasons must be explained and justified by the employer as per section 41 of the Employment Act. Fairness under section 41 of the Act would require where investigation of the reason was done by the employer, the investigation outcomes be disclosed to the employee facing possible dismissal, failing which the benefit of doubt would be accorded to the employee by the Court that the investigation outcome was in his favour. That is the case here.
45. Consequently, In the instant case the court finds the grievant’s rights were not catered for in the process of termination. As much as the court agrees he was not entitled to disclosure of complainants names and statements before the hearing, at the disciplinary hearing the Court held the grievant was entitled to disclosure of the investigation report, the complainant’s statements and if he wished to cross-examine them they be availed, to cross-examine the site manager who made the complaint on undisclosed dates in December 2020 and the investigators on their report pursuant to section 6 of the Employment act (supra). The Court found no evidence of alleged photos at all. At the hearing RW1 was asked, ‘’upto now you have not provided the claimant with evidence of the allegations.’’ Answer. ‘’The evidence was in the investigation report and not given to the individual.’’ The said report was not referred to at the disciplinary hearing and termination letter . It remained a top secret of the respondent relied on to dismiss the grievant . RW1 agreed there was no evidence disclosed in the show cause letter. During re-examination RW1 told the court the complaints were made to the line manager. The line manager was not called or even his complaint disclosed at the disciplinary hearing. The grievant who had no prior disciplinary issues in 15 years of service. The suspension was beyond 30 days on basis of investigation a violation of the CBA(1st March 2019-28th February 2021) clause 23(b)between the parties. The matter was not reported to the police. RW1 justified the suspension based on the sensitive nature of sexual harassment complaints.
46. The Court held that the grievant’s right to procedural fairness under section 41 of the Employment Act were violated for failure to be accorded information (statements on the complaint, investigation report alleged to have been the reason for the suspension, failure to produce complainants and the investigators for cross-examination)in support of accusations at the hearing and for suspension outside the CBA provisions. The process was tainted with injustice for the foregoing reasons. The court held that for the foregoing reasons the alleged sexual harassment was not proved according to section 43 of the Employment Act to have existed.
47. The court agreed on the test of a reasonable employer as stated in the following passage from Halsbury’s Laws of England, 4th Ed. Vol. 16 (1B) paragraph 642 which was reproduced in CFC Stanbic Bank Limited vs. Danson Mwashako Mwakuwona, Civil Appeal No. 3 of 2014:
“...In adjudicating on the reasonableness of the employer's conduct, an employment tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts; it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts. The basis of this approach (the range of reasonable responses test) is that in many cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another quite reasonably take another; the function of a tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted . If the dismissal falls within the band, the dismissal is fair; but if the dismissal falls outside the band, it is unfair.”(see also British Leyland (U.K)Ltd v Swift, 1980] EWCA Civ J1017-8 )The court held that a reasonable employer would have acted like Base Titanium Limited in Boniface Mzungu v Base Titanium Limited (2020)e KLR by balancing the right of the victim/complainant of sexual harassment with that of the employee to fair procedural hearing where the evidence of the employer on the sexual harassment is disclosed to the employee and tested at the disciplinary hearing. This was not the case by the Respondent who kept the employee in total darkness all through the process despite having investigated the complaint and alleged to have received complaInt by the line manager. The alleged complaint statements and the investigation report were never availed. The court held that the respondent did not act as a reasonable employer who is obliged in such cases to balance the right to confidentiality of the victim/complainant of sexual harassment with that of the accused employee to fair procedural hearing and right not to have their job taken away without justification. In the upshot the termination of the employment of the grievant was held to have been wrongful and unfair.
Issue 2. Whether the claimant is entitled reliefs sought.
48. The claimant sought the following reliefs:-
A) (i) Declare that the suspension, show cause and eventual termination of the grievant's services was unfair, wrongful and unlawful.
(ii) Orders the Respondent to honour the Recommendations by the Conciliator dated 5th January, 2022 by unconditionally reinstating the grievant to his previous position.
(iii) Order the Respondent to treat the services of the grievant, upon reinstatement, as continuous and as if the same were never interrupted.
(iv) Order the Respondent to pay the grievant, upon reinstatement, maximum compensation for unlawful, wrongful and unfair termination.
(v) Costs of the suit be granted to the Claimant.
OR
(B) In the alternative and where the court does not grant prayers under; 'A' above, the Claimant prays and seeks that this Court Do: -
(i) Issue an Order directing the Respondent to pay the grievant for the remainder of his 13 years and one month of service to retirement based on his last gross pay.
(ii) Award maximum compensation to the grievant for the "unlawful, action against him.
OR
(C) This Honorable court do:
i)Order the Respondent to treat the grievant as having been declared redundant, and:-
(ii) Order the Respondent to pay the grievant benefits under clause 27(1)-(ix) of the parties Collective Bargaining Agreement
(iii) Award payment of maximum compensation for the unlawful, wrongful and unfair termination
(iii) Award Costs of the suit to the claimant.
(D) (i) That the Respondent be ordered to settle from their own funds all loans and interest which the grievant has been unable to service as a result of this unlawful termination in alleviating this burden on the grievant; or
(ii) An order for general damages be issued for violating the grievant's Constitutional and Labour rights.
(E) That in awarding either of prayers A, B, C & D above this Honourable Court be pleased to grant any other relief found fit, just and proper to meet the ends of justice.
F) An order do issue to the Directorate of Criminal Investigations to release call loques regarding the grievant's cell phone discussions on 31st December, 2020.
Decisions on remedies
49. Section 50 of the Employment Act obliges the court on finding unfair termination to be guided by section 49 of the Act on remedies to award. section 49 provides :-
‘’Remedies for wrongful dismissal and unfair termination
(1) Where in the opinion of a labour officer summary dismissal or termination of a contract of an
employee is unjustified, the labour officer may recommend to the employer to pay to the employee
any or all of the following—
(a) the wages which the employee would have earned had the employee been given the period of
notice to which he was entitled under this Act or his contract of service;
(b) where dismissal terminates the contract before the completion of any service upon which
the employee's wages became due, the proportion of the wage due for the period of time
for which the employee has worked; and any other loss consequent upon the dismissal and
arising between the date of dismissal and the date of expiry of the period of notice referred to
in paragraph (a) which the employee would have been entitled to by virtue of the contract; or
(c) the equivalent of a number of months wages or salary not exceeding twelve months based on
the gross monthly wage or salary of the employee at the time of dismissal.
(2) Any payments made by the employer under this section shall be subject to statutory deductions.
(3) Where in the opinion of a labour officer an employee's summary dismissal or termination of
employment was unfair, the labour officer may recommend to the employer to—
(a) reinstate the employee and treat the employee in all respects as if the employees
employment had not been terminated; or
(b) re-engage the employee in work comparable to that in which the employee was employed
prior to his dismissal, or other reasonably suitable work, at the same wage.’’
On claim for reinstatement
50. The grievant was dismissed from employment on 11th March 2021. Three years have elapsed since the termination. Section 12(3) of the Employment and Labour Relations Act prohibits the reinstatement of employee to work on expiry of three years past termination of service as follows:- ‘’(vii) an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose
under circumstances contemplated under any written law; or’’ The Court agreed with the respondent the relief of reinstatement was not available to the grievant under the law.
Claim for Notice pay
51. The court having found unfair termination the grievant was entitled to notice pay under the applicable CBA during the period of service which the court finds was the CBA of 1st March 2019 to 28 February 2021. The disciplinary hearing leading to the termination was held on the 23rd February 2021 and the termination letter issued 11th March 2021. The claimant thus served under the said CBA then next one having been signed on the 30th June 2021. The letter of termination provided for terminal dues of 4 months which the claimant produced the May 2021 pay slip which indicated the notice pay was payable under the termination(C-Exh 38). That prayer is spent.
Reliefs sought for remainder of service till retirement and an order to settle loans.
52. The court noted the conciliator had recommended these awards. The court agreed with the respondent that these are not provided for as remedies under section 49 of the Employment Act and are declined.
Prayer for Order the Respondent to treat the grievant as having been declared redundant, and:- Order the Respondent to pay the grievant benefits under clause 27(1)-(ix) of the parties Collective Bargaining Agreement.
53. The claimant stated that since the termination was not based on the fault of the grievant he should be treated as if declared redundant and paid the benefits under clause 27 of the CBA expiring in February 2021. The respondent opposed the prayer and stated that the grievant was not declared redundant. The court declined the prayer on the basis that redundancy is a special procedure under section 40 of the Employment Act and cannot be assumed to have happened simply because the employee was terminated for no fault. If the employee was not at fault in normal termination that is treated as unfair termination and the remedies under section 49 of the Employment Act apply.
Claim for Compensation for unlawful and unfair termination
54. The claimant sought maximum compensation for the unlawful and unfair termination
The court under section 49(1)c) of the Employment Act is empowered to award compensation as follows:- ‘’(c) the equivalent of a number of months wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.’’
55. The court in deciding on the award is further guided to consider the following under section 49(4):-
(a) the wishes of the employee;
(b) the circumstances in which the termination took place, including the extent, if any, to which
the employee caused or contributed to the termination; and
(c) the practicability of recommending reinstatement or re-engagement;
(d) the common law principle that there should be no order for specific performance in a
contract for service except in very exceptional circumstances;
(e) the employee's length of service with the employer;
(f) the reasonable expectation of the employee as to the length of time for which his
employment with that employer might have continued but for the termination;
(g) the opportunities available to the employee for securing comparable or suitable employment
with another employer;
(h) the value of any severance payable by law;
(i) the right to press claims or any unpaid wages, expenses or other claims owing to the
employee;
(j) any expenses reasonable incurred by the employee as a consequence of the termination;
(k) any conduct of the employee which to any extent caused or contributed to the termination;
(l) any failure by the employee to reasonably mitigate the losses attributable to the unjustified
termination; and
(m) any compensation, including ex-gratia payment, in respect of termination of employment
paid by the employer and received by the employee.’’
56. The grievant in the instant case had worked for the respondent since 1st January 2006 to date of termination of 11th March 2021. He was on his 15th year of service without any prior disciplinary record. The court opined he was a star employee. The court found there was no basis of his termination for lack of justified reason and the procedure was unfair. The order of reinstatement was not available. There was no reason why the employee would not have served to retirement having reached 15 years . The Court found violation of the terms of CBA by the Respondent. The court considered there were slim chances of the grievant securing comparable or suitable employment with another employer. The court taking into consideration the foregoing found this was a case where the claimant deserved the maximum compensation equivalent of 12 months’ gross salary which is awarded. The respondent submitted that the grievant was earning consolidated salary of Kshs. 448759.86 which was not disputed. Compensation was awarded thus 12 months x 448759.86 total award of Kshs. 5,385,118.32
57. On the claim for violation of labour rights the court finds the compensation awarded is for violation of the same labour rights under Employment Act. The compensation for equivalent of 12 months’ salary sufficed to cover the unlawful and unfair termination and the violation of the labour rights.
58. In conclusion the Court held the claim as merited and entered judgment in favour of the claimant on behalf of the grievant against the respondent as follows:-
a. The termination of the employment of the grievant by the respondent is held to have been unlawful and unfair
b. Compensation for unfair termination Kshs. 5,385,118.32 payable subject to statutory deductions.
c. Interest at court rates from the date of judgment until payment in full.
d. Costs of the suit.
59. Stay of 30 days.
60. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 21st DAY OF FEBRUARY, 2025.