Margaret Wairimu Gacheru v Beta Healthcare International Limited [2020] KEELRC 1730 (KLR)
The bottom line
#A Kenyan court upheld a secretary's dismissal for sending offensive work emails, ruling that employers may monitor company email systems and that admitted misconduct defeats compensation claims.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for dismissal
The dismissal was for a valid reason - admitted gross misconduct in sending offensive and disparaging emails in breach of the email and instant messaging policy
The claimant admitted before the Grievance Committee that she wrote the offensive emails, apologised and wrote a letter of apology to the affected colleague. The emails disparaged a fellow employee on the respondent's own email platform, contrary to a policy in place since 2010 which made electronic messages company property. The court held this amounted to gross misconduct justifying summary dismissal under sections 43 and 45 of the Employment Act, 2007.
Fairness of the dismissal procedure
Although there was no formal show-cause notice and notice was short, the procedural lapses did not avail the claimant because she admitted the misconduct; she fully contributed to the termination
The Grievance Committee summoned the claimant at noon on the day of the hearing, she arrived at 3.00pm, admitted the allegations and apologised, and the dismissal letter was signed the same day. The court found that even if more time had been given, nothing would have changed because she admitted the misconduct. The failure to serve a formal notice or show-cause notice was acknowledged but did not result in relief; instead it influenced the costs order.
Knowledge of the email policy and privacy of communications
The claimant knew of the email policy, as shown by her admission and apology, and her communications were not private since the employer owned the email system
The claimant argued she was unaware of the email and instant messaging policy and believed her communications were private. The court reasoned that her admission of wrongdoing and apology demonstrated knowledge of the policy. Further, the policy expressly made all messages on the company's electronic systems company property and reserved the right to intercept, monitor, review or disclose them, so the employer was entitled to retrieve the chats.
Legal principles established
#- An employer as owner of the email system is entitled to access and retrieve employee communications on its platform, especially where an email and instant messaging policy reserves that right
- An employee's admission of gross misconduct and apology establishes awareness of the employer's policy and justifies dismissal under sections 43 and 45 of the Employment Act
Court orders
#- 1.Judgment entered for the respondent against the claimant for the dismissal of the suit
- 2.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Wairimu Gacheru v Beta Healthcare International Limited [2020] KEELRC 1730 (KLR)", Case Analysis (2020). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1730/eng@2020-01-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.