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ELRCPartially AllowedCause Number 927 of 2010· [2014] KEELRC 623 (KLR)

P O v Board of Trustees, A F & 2 others [2014] KEELRC 623 (KLR)

Industrial Court of Kenya
28 February 2014
JRJames Rika
5,527 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court awarded an employee KShs 3.24 million after finding she was fired for rejecting her boss's sexual advances.

What this practically means

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Executive summary

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The Claimant, employed as a Training and Investigative Consultant from 5th January 2010 at Kshs. 120,000 per month, sued the Board of Trustees of a Fair Trade charitable organization and its Executive Chairman, alleging gender-based violence and sexual harassment at the workplace. While travelling to a COFTA Regional Conference in Swaziland via South Africa, the 2nd Respondent made sexual advances, assaulted her when she rebuffed him, and booked a shared room. She returned to Kenya; her contract was terminated in May 2010 allegedly for misconduct, without payment of her May salary. The 2nd Respondent denied employment, assault and the Court's jurisdiction, contending the dispute arose in South Africa and belonged in the criminal courts. The Court held it had exclusive jurisdiction under the Employment Act 2007 and Labour Institutions Act, and under clauses 16 and 17 of the contract selecting Kenyan law and courts. It found the 2nd Respondent was an Employer under statutory definitions and the common law, control, economic reality and hybrid tests. The termination was unfair and unlawful under Sections 43 and 45, being punishment for rejecting sexual advances, contrary to Section 6 of the Employment Act outlawing sexual harassment. The Court drew on ILO materials, Convention 111, CEDAW and the Vishaka decision, and viewed the conduct also as a health and safety issue. The Court awarded notice pay of Kshs. 120,000, May 2010 salary of Kshs. 120,000, and general damages of Kshs. 3,000,000, payable within 40 days, with costs to the Claimant.

Key legal issues

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01

Jurisdiction of the Industrial Court over a dispute with elements occurring abroad

Holding

The Industrial Court of Kenya had exclusive jurisdiction; the contract was governed by Kenyan law and conferred exclusive jurisdiction on Kenyan courts, the contract was performed and terminated in Kenya, and the dispute is an employment matter, not a criminal matter

Reasoning

Clauses 16 and 17 of the contract selected Kenyan law and exclusive Kenyan jurisdiction. The contract was concluded and performed in Kenya and terminated in Kenya. The claimant was a Kenyan citizen and the 1st Respondent a charitable organization domiciled in Kenya. The Employment Act 2007 and Labour Institutions Act conferred exclusive jurisdiction. The jurisdictional challenge was rejected.

p. 3
02

Whether the 2nd Respondent was an Employer of the Claimant

Holding

Yes. He signed the contract on behalf of the 1st Respondent, was described as Executive Chairman, recruited, directed, controlled and paid the Claimant, and was an Employer under the statutory definition and the common law, economic reality and hybrid tests

Reasoning

The definition of 'Employer' under Section 2 of the Employment Act, Labour Relations Act and Industrial Court Act includes an agent, foreman, manager or factor. The uncontradicted evidence was that the 2nd Respondent interviewed, employed and paid the Claimant and directed her work. The 1st Respondent remained faceless. He was properly sued as an Employer.

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Whether the termination was fair and lawful

Holding

No. The alleged misconduct was not a valid ground under Sections 43 and 45 of the Employment Act 2007; the real reason was punishment of the Claimant for rejecting the 2nd Respondent's sexual advances

Reasoning

The evidence, including authentic e-mails, showed the 2nd Respondent recruited the Claimant seeking 'emotional investment', assaulted her in South Africa when she rebuffed him, and terminated her contract barely five months after recruitment as punishment for not yielding to his sexual expectations. The alleged misconduct was not a valid reason for termination.

p. 5
04

Whether the 2nd Respondent's conduct amounted to sexual harassment and gender-based violence at the workplace

Holding

Yes. His conduct breached Section 6 of the Employment Act 2007, constituted sex discrimination under ILO Convention 111, and could also be viewed as a workplace health and safety issue under Section 8 of the Occupational Safety and Health Act 2007

Reasoning

The 2nd Respondent requested sexual activity with implied promise of preferential treatment, used sexual language, showed physical behaviour of a sexual nature by booking a shared room and assaulting the Claimant. The behaviour was unwelcome, offensive and had a detrimental effect on her employment. International instruments on gender-based violence and sexual harassment reinforced the analysis.

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Entitlement to remedies

Holding

The Claimant merited notice pay, unpaid May 2010 salary, and general damages of Kshs. 3,000,000 for sexual harassment and unfair and wrongful termination

Reasoning

Victims of sexual harassment merit monetary damages for financial loss from dismissal and for injury to feelings, humiliation, human dignity and nullification of equality of opportunity. The 2nd Respondent's behaviour left the Claimant humiliated, sexually violated and jobless. The measure of general damages was commensurate with the physical, psychological and economic injury suffered.

p. 9

Legal principles established

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  • Sexual harassment and gender-based violence at the workplace are outlawed under Section 6 of the Employment Act 2007, and termination of an employee for refusing sexual advances is unfair and unlawful
  • A person who recruits, directs, controls and pays an employee is an Employer within the statutory and common law definitions, including under the economic reality and control tests

Court orders

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  1. 1.The Respondents shall pay to the Claimant one month salary in lieu of notice at Kshs. 120,000
  2. 2.The Respondents shall pay to the Claimant salary for the month of May 2010, at Kshs. 120,000
  3. 3.The Respondents shall pay to the Claimant general damages for sexual harassment, unfair and wrongful termination, at Kshs. 3,000,000
  4. 4.The total amount of Kshs. 3,240,000 shall be paid to the Claimant by the Respondents within 40 days of the delivery of this Award
  5. 5.Costs awarded to the Claimant, to be assessed by the Deputy Registrar of the Court

Authorities

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Legislation

  • Employment ActSections 2, 6, 43, 45
  • Labour Institutions ActSections 12, 15
  • Labour Relations ActSection 2
  • Industrial Court ActSection 12
  • Occupational Safety and Health ActSection 8
  • Constitution of Kenya (repealed)Sections 74, 82
  • Constitution of Kenya 2010mentioned as not directly applicable to pre-2010 events
  • Industrial Relations Charter Kenya (revised 30th April 1984)Paragraph D
  • UN Universal Declaration of Human Rights 1948Articles 1, 3, 5
  • UN Declaration on the Elimination of Violence against Women 1993definition of violence against women
  • ILO Convention 111 (Discrimination in Respect of Employment and Occupation, 1958)definition of discrimination
  • UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Cases cited (1)

  • Vishaka & Ors v. the State of Rajasthan & Ors
    [1997] [7] [SC 384]
Jurisdiction invoked
Employment Act 2007 and Labour Institutions Act 2007 conferring exclusive jurisdiction on the Industrial Court; clauses 16 and 17 of the contract of employment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "P O v Board of Trustees, A F & 2 others [2014] KEELRC 623 (KLR)", Case Analysis (2014). Cause Number 927 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/623/eng@2014-02-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.