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ELRCPartially AllowedCause No. 106 of 2017· [2019] KEELRC 1101 (KLR)

Daud Bosire Ogwagwa v Style Industries Limited [2019] KEELRC 1101 (KLR)

Employment and Labour Relations Court of Kenya
10 July 2019
1,763 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, employed as a general labourer by the respondent from September 2015 until 17th December 2016, claimed he was summarily dismissed on the instructions of the production manager without explanation or hearing, contrary to Article 41 of the Constitution. He sought notice pay, annual leave, prorata leave, pay for 14 days worked, compensation and costs. The respondent defended the dismissal, asserting that two new female employees, MW and MN, complained on 16th December 2016 that the claimant had sexually harassed them by unwelcome touching of their shoulders and thighs; that he was issued a notice to show cause, attended a disciplinary hearing on 19th December 2016 with the complainants testifying, denied the allegations by alleging a supervisory conspiracy, and was found culpable under the respondent's sexual harassment policy, resulting in summary dismissal on 31st December 2016. The court applied an objective test of whether the conduct was unwelcome and, citing Lydiah Mongina Mokaya v St. Leonard's Maternity Nursing Home Limited, held that sexual harassment cases warrant a relaxed standard of proof. It upheld the finding of culpability but held summary dismissal too harsh since termination was the gravest sanction under the policy, entitling the claimant to notice pay. Claims for leave and days worked were covered by the dismissal letter subject to lawful deductions under section 19. The claim was partially allowed: notice pay of Ksh.11,624.00 awarded under section 49(1)(c), with costs denied for the claimant's uncooperative conduct.

Key legal issues

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01

Whether the dismissal was procedurally fair

Holding

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

Reasoning

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.

p. 2
02

Whether the claimant sexually harassed MW and MN

Holding

The claimant was found culpable of sexual harassment under the respondent's policy; the finding could not be faulted

Reasoning

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.

p. 2
03

Appropriate sanction

Holding

Summary dismissal was too harsh; the gravest sanction under the policy was termination, so notice pay was awarded

Reasoning

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.

p. 3
04

Claims for leave, days worked and lawful deductions

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Each party to bear own costs - costs denied to the claimant for being uncooperative during the disciplinary process

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Employment Actsection 6(1)(d)
  • Employment Actsection 19
  • Employment Actsection 49(1)(c)

Cases cited (1)

  • Lydiah Mongina Mokaya versus St. Leornard’s Maternity Nursing Home Limited
    [2018] eKLR
Jurisdiction invoked
Article 41 of the Constitution of Kenya and the Employment Act (ELRC first-instance jurisdiction)

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, "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.