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ELRCDismissedNot stated in the judgment excerpt· [2019] KEELRC 606 (KLR)

Laban Mutungi Mulinge v Paramount Universal Bank Ltd [2019] KEELRC 606 (KLR)

Employment and Labour Relations Court
25 October 2019
BOByram Ongaya
1,371 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a dismissal for workplace sexual harassment, confirming employers can fire fairly if they follow proper disciplinary procedure.

What this practically means

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Executive summary

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The claimant, employed by the respondent by letter dated 26.05.2003 as a management trainee and confirmed after probation, sued for damages for wrongful dismissal of 12 months' salaries (Kshs. 1,320,000), service pay (Kshs. 660,000), unpaid leave days (Kshs. 33,000), pension benefits, and a declaration that his termination was unlawful. He was dismissed by letter dated 16.12.2014 following a complaint by Ms. Safina Mohamed, Assistant Manager of the Industrial Area Branch, that on 15.11.2014 he touched her buttocks without her consent. The court framed three issues: existence of the employment relationship, the fact of termination, and whether the termination was unfair. On the evidence, the court found the claimant was given a show-cause notice, appeared before a disciplinary committee with a companion of his choice, and that CCTV footage was played. The claimant's shifting explanations - that he pulled Ms. Mohamed 'gently' to have her sign a register, later admitting the 'flap' was on the backside of her jeans - together with witness statements and CCTV, led the court to find, on the claimant's own admission, that he touched Ms. Mohamed inappropriately amounting to sexual or physical harassment contrary to the respondent's anti-sexual harassment policy and applicable law. The court also found terminal dues, including notice pay, December days worked, leave days and pension, were paid and receipt confirmed. The suit was dismissed with costs. Judgment signed, dated and delivered at Nairobi on 25th October 2019 by Byram Ongaya, Judge.

Key legal issues

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01

Whether the termination of the claimant's employment was unfair

Holding

The termination was fair both procedurally and substantively; the claimant admitted inappropriate touching amounting to sexual harassment, and was given a show-cause notice and a disciplinary hearing with an opportunity to be accompanied and to respond

Reasoning

The court found the claimant was notified of the allegations, responded to the show-cause letter, appeared before the disciplinary committee with a chosen witness, and CCTV footage was played. His own explanations shifting from pulling Ms. Mohamed 'gently' to admitting the flap was on her trouser backside, together with witness statements and CCTV, established harassment contrary to the respondent's Standards of Conduct and the Employment Act.

p. 2
02

Whether terminal dues remained owing

Holding

Terminal dues, including notice pay, December days worked, leave days and pension, were paid and receipt confirmed, leaving no entitlement outstanding

Reasoning

The court recorded that the claimant was paid one month's salary in lieu of notice, 16 days worked in December, 15 leave days and pension dues, and that he signed confirming receipt on 17.12.2014. Consequently the heads of claim for service pay, leave and pension benefits failed.

p. 2

Legal principles established

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  • Sexual or physical harassment of a co-worker constitutes valid misconduct justifying termination where established by the employee's own admission, provided due process under section 41 of the Employment Act is observed

Court orders

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  1. 1.Judgment entered for the respondent against the claimant
  2. 2.Dismissal of the claimant's suit
  3. 3.Costs of the suit awarded to the respondent

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 6(1)(d)
  • Employment Act, 2007section 6(3) and 6(3)(b)
  • Constitution of Kenya, 2010Article 28
  • ILO Violence and Harassment Convention, 2019definition of violence and harassment in the world of work
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Laban Mutungi Mulinge v Paramount Universal Bank Ltd [2019] KEELRC 606 (KLR)", Case Analysis (2019). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/606/eng@2019-10-25

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