Githura v Safaricom Limited (Cause 2122 of 2017) [2023] KEELRC 2684 (KLR)
The bottom line
#Safaricom rightly dismissed an employee for sexual harassment, but lost on damages because it hid who had accused her.
What this practically means
#Executive summary
#Key legal issues
#Mental capacity to stand the disciplinary hearing
The Respondent cannot be faulted for holding the disciplinary hearing because there was no evidence it knew of the Claimant's mental health condition at the time; the adjudication of mental disorder occurred on 15th July 2022, long after termination
The discharge summary from Chiromo Lane Medical Centre related to an admission in February 2017, after the disciplinary hearing of October 2016 and after the termination decision. There was no evidence the Respondent possessed information about therapy at Build & Restore at the time of the hearing. The Claimant was at work when suspended. The court therefore held the employer acted properly in convening the hearing.
Justifiable reason for termination (substantive fairness)
The Respondent proved on a balance of probabilities that it had valid and fair reasons related to the Claimant's conduct - unwelcome, unreciprocated sexual advances towards colleagues contrary to its Harassment Policy
The Ethics and Compliance investigations gathered statements from Esther, Joyce, Reuben and Micah, corroborated by social media messages. The Claimant admitted making advances that were rebuffed, yet persisted to the point of being blocked on social media. Her own messages acknowledged the conduct could amount to sexual harassment. The court applied Section 43 of the Employment Act and the balance-of-probabilities standard, and rejected the respondeat superior argument based on the team-building event because the conduct continued well beyond that event.
Procedural fairness of the disciplinary process
Although the Respondent substantially complied with Section 41, the process was procedurally unfair because the Claimant was not told the identity of her accuser(s) and could not properly prepare her defence
The Notification of Disciplinary Hearing referred generically to a colleague without naming her; in fact four colleagues had complained. The Claimant repeatedly asked at the hearing who had complained but got no answer. Relying on Ol Pejeta Ranching Limited vs David Wanjau Muhoro, the court found the allegations too general, compromising her defence, and thus the termination was procedurally unfair and unlawful despite being substantively justified.
Reliefs
Compensatory damages of four months' gross salary (Kshs 258,808) awarded, not the twelve months' salary sought, reflecting the mixed outcome and the length of the employment relationship
The court balanced its finding of substantive justification against procedural unfairness. A four-month compensatory award accounted for the length of the employment relationship. The broader declarations and general damages sought were not granted in the form claimed; costs and interest from the date of judgment were awarded to the Claimant.
Legal principles established
#- An employer must disclose to an employee the specific allegations, including the identity of complainants, to enable effective defence at a disciplinary hearing; failure to do so renders the process procedurally unfair
- Unwelcome and unreciprocated sexual advances continued after the recipient has asked the pursuer to stop amount to sexual harassment justifying termination
- The standard of proof in unfair termination cases is on a balance of probabilities, and the employer need only prove reasons it genuinely believed to exist at the time of termination
Court orders
#- 1.A declaration that the summary dismissal of the Claimant by the Respondent was procedurally unfair hence unlawful
- 2.The Claimant is awarded compensatory damages in the sum of Kshs 258,808.00 being equivalent to four (4) months of her gross salary
- 3.Interest on the amount in (b) at court rates from the date of Judgment until payment in full
- 4.The Claimant shall also have the costs of the suit
- Jurisdiction invoked
- Original jurisdiction under the Employment Act and the Constitution (fair labour practices); judgment delivered under the court's COVID-19 directions pursuant to Article 159(2)(d) and Article 48 of the Constitution and Section 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githura v Safaricom Limited (Cause 2122 of 2017) [2023] KEELRC 2684 (KLR)", Case Analysis (2023). Not stated in the judgment (Statement of Claim filed 19th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2684/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.