JWK v Multimedia University College of Kenya & another (Cause 2041 of 2012) [2019] KEELRC 3 (KLR)
The bottom line
#A Kenyan court fined a university for lacking a workplace sexual harassment policy, but dismissed the harassment claims themselves for lack of evidence.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
The claimant, engaged on 27 July 2011 on one-year probationary terms, became a permanent and pensionable employee after 11 July 2012 since the probation was never extended nor was she confirmed.
The contract provided for a one-year probation determinable by one month's notice. Section 42(2) of the Employment Act caps probation at six months, extendable only with the employee's agreement. As there was no indication the probation was extended or that confirmation issued, the claimant is deemed to have assumed a permanent and pensionable position after the probationary period ended.
Whether the claimant was sexually harassed by the security guards and the 2nd Respondent
The allegations of sexual harassment were not proved against either the security guards or the 2nd Respondent and were dismissed.
The claimant reported to Langata Police Station eight months after the alleged incident with the guards; the investigating officer produced no statements from the guards. As to the 2nd Respondent, there was no evidence she reported the alleged harassment to anyone until after filing suit, despite her seniority and access to reporting structures including her immediate boss, the Deputy Principal Finance and Administration. This delay created doubt in the court's mind.
Whether the 1st Respondent had a Sexual Harassment Policy
The 1st Respondent conceded it had no Sexual Harassment Policy at the material time and did not exhibit its later policy; it is liable to punishment under section 88 of the Employment Act.
The claimant herself, while in charge of the docket, emailed a draft policy to the 2nd Respondent in March 2012, showing the employer had no policy. Section 6(2) of the Employment Act requires employers with 20 or more employees to have a Sexual Harassment Policy. The 1st Respondent admitted the omission and, though claiming to have since developed a policy, did not exhibit it in court.
Discrimination in pay
The discrimination allegation was not proved and was dismissed.
The claimant alleged she was paid less than less-qualified employees but failed to identify those employees or their salaries. The allegation remained mere assertion without evidence.
Whether the claimant's constitutional rights were infringed and whether her termination was unfair
No infringement of Articles 26, 27, 28, 30, 31, 41, 42 and 43 was demonstrated. Although the termination under a probationary clause was improper, the claimant took up other employment in breach of clause 5.3 of the terms of service, giving a valid reason for termination; and no remedy for unfair termination was sought.
The claimant could not demonstrate how the cited Articles were infringed. On termination, having become permanent and pensionable, the employer could not terminate under a probationary clause. However, the claimant's own documents established she accepted employment elsewhere while still employed by the university, contrary to clause 5.3.1 prohibiting outside work without permission, providing a valid reason for termination. No unfair termination remedy was pleaded.
Legal principles established
#- An employer with 20 or more employees commits an offence under the Employment Act if it fails to have a Sexual Harassment Policy, and is liable to the general penalty under section 88 of the Act.
- Where a probationary period is not extended or confirmed, the employee ceases to serve on probation and assumes a permanent and pensionable position.
- Allegations of sexual harassment must be proved by ample evidence; courts should not jump to conclusions, and a complainant's failure to report at the earliest opportunity casts doubt on the claim.
- An employer cannot terminate a permanent and pensionable employee under a probationary clause where the probationary period was never extended.
Court orders
#- 1.An order compelling the 1st Respondent to institute a Sexual Harassment Policy in compliance with the Employment Act 2007 within 3 months from the date of the judgment
- 2.A fine of Kshs 50,000/= imposed on the 1st Respondent
- 3.The 1st Respondent to pay the costs of the Claimant in the case
- 4.The Claimant's case against the 2nd Respondent dismissed with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Articles 26, 27, 28, 30, 31, 41, 42, 43 and 47 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JWK v Multimedia University College of Kenya & another (Cause 2041 of 2012) [2019] KEELRC 3 (KLR)", Case Analysis (2019). Cause No 2041 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/3/eng@2019-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.