Daud Bosire Ogwagwa v Style Industries Limited [2019] KEELRC 1101 (KLR)
The bottom line
#A Kenyan court found sexual harassment allegations justified but ruled the worker's summary dismissal too harsh, awarding him notice pay only.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was procedurally fair
A disciplinary hearing was held on 19th December 2016 where the claimant was invited, heard, and denied the allegations; the process substantially complied with fair procedure
The court found that a show cause notice was likely issued on 19th December 2016 and a disciplinary hearing took place at which the claimant gave his defence, alleging collusion by a supervisor. The minutes recorded the hearing and the claimant's denial. The court held the finding of culpability under the respondent's sexual harassment policy could not be faulted, though the sanction of summary dismissal was too harsh, entitling him to notice pay.
Whether the claimant sexually harassed MW and MN
The claimant was found culpable of sexual harassment under the respondent's policy; the finding could not be faulted
The complaints of MW and MN, that the claimant touched their shoulders and thighs in an unwelcome manner, were corroborated in their statements and testimony. Applying an objective standard of unwelcomeness and the reduced evidentiary burden appropriate to sexual harassment claims, the court upheld the employer's finding of culpability under clause 2.5 of the policy.
Appropriate sanction
Summary dismissal was too harsh; the gravest sanction under the policy was termination, so notice pay was awarded
The policy under clause 2.5 provided for verbal warning, suspension, transfer or termination, with an appeal. The court considered these sanctions lenient relative to the detriment sexual harassment causes, but since termination was the gravest punishment, summary dismissal without notice was excessive, attracting notice pay under section 49(1)(c) of the Employment Act.
Claims for leave, days worked and lawful deductions
Payment for days worked and due leave was already offered in the dismissal letter, subject to lawful deductions under section 19 of the Employment Act
Although the defence asserted the claimant was paid for leave and days worked, no payment records were submitted. However, the summary dismissal letter itself offered pay for days worked until 31st December 2016 and earned leave days, less sums owed to the respondent and its Sacco, which the court found compliant with section 19 permitting lawful deductions.
Legal principles established
#- Whether conduct constitutes sexual harassment must be assessed objectively, as conduct unwelcome to one person may not be unwelcome to another
- Cases of sexual harassment are personalized and difficult to prove, so the standard burden of proof should not be rigidly applied
- Where summary dismissal is too harsh given the available sanctions, notice pay is due for termination of employment
Court orders
#- 1.Pursuant to section 49(1)(c) of the Employment Act, award of notice pay of Ksh.11,624.00 based on the due gross wage
- 2.Each party to bear own costs - costs denied to the claimant for being uncooperative during the disciplinary process
- Jurisdiction invoked
- Article 41 of the Constitution of Kenya and the Employment Act (ELRC first-instance jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daud Bosire Ogwagwa v Style Industries Limited [2019] KEELRC 1101 (KLR)", Case Analysis (2019). Cause No. 106 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1101/eng@2019-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.