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ELRCPartially AllowedCause No 632 of 2019· [2024] KEELRC 26 (KLR)

Maiyo v Kenya Commercial Bank & another (Cause 632 of 2019) [2024] KEELRC 26 (KLR)

Employment and Labour Relations Court
25 January 2024
LNLINNET NDOLO
3,371 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 ruled that KCB constructively dismissed a teller who resigned after the bank ignored her sexual harassment complaint, awarding her over Kshs. 1.7 million.

What this practically means

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Executive summary

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The Claimant, a Teller at the 1st Respondent Bank's Kitale Branch, sued alleging constructive dismissal, sexual harassment and discrimination by the 2nd Respondent, her supervisor, the Branch Cash Manager. Her troubles began with an instruction on 23rd April 2019 to move stations, which she declined citing branch rotation practice, prompting a show cause letter. In response she lodged a sexual harassment complaint against the 2nd Respondent. Rather than investigate, the Branch Manager demanded that she supply documentary evidence of her complaint by 22nd May 2019, failing which severe disciplinary action would follow. On 20th May 2019 she resigned; the Bank accepted the resignation on 21st May 2019, hours before her email seeking to withdraw it, and later declined her revocation request. The Court found that the Bank's management chose to lump her insubordination charge together with her harassment complaint, failed the fairness test, and orchestrated a calculated move to obscure her complaint, leaving her no real choice but to resign. Her resignation was therefore not voluntary and amounted to constructive dismissal. However, the sexual harassment and discrimination claims themselves were not proved, the former because the employer's failure to investigate denied her the opportunity to prove it, the latter for want of evidence. The Respondents' Counterclaim for notice pay, damages and a compelled newspaper apology failed in its entirety. Reinstatement was declined owing to the lapse of time; the Court awarded twelve months' salary in compensation, one month's notice pay, interest, a certificate of service and costs to the Claimant.

Key legal issues

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01

Constructive dismissal

Holding

The Claimant's resignation was not voluntary; it was compelled by the Bank's mishandling of her sexual harassment complaint and intimidation, amounting to constructive dismissal

Reasoning

The Court found that after the Claimant reported sexual harassment against a senior official, the Bank lumped her complaint with a disciplinary matter, demanded evidence from her instead of investigating, threatened severe disciplinary action, and ignored her plea to have her grievances heard. Faced with demands from senior officials, she had no choice but to resign, and the Bank refused to reopen her case. This conduct destroyed the employment relationship.

p. 8
02

Sexual harassment and discrimination

Holding

The sexual harassment claim failed because the employer's failure to investigate denied the Claimant the opportunity to prove her allegations; the discrimination claim failed for want of evidence

Reasoning

Although the complaint of sexual harassment was on record, it was never investigated, so the Claimant was denied the opportunity to prove it. The discrimination allegation, subsumed with the sexual harassment complaint, was not supported by any evidence adduced at trial. Both heads were therefore disallowed, though the failure to investigate informed the constructive dismissal finding and the compensation award.

p. 7
03

Respondents' Counterclaim

Holding

The Counterclaim for one month's salary in lieu of notice, general and aggravated damages and a published apology failed in its entirety

Reasoning

Having found constructive dismissal and that the 1st Respondent failed to investigate the sexual harassment complaint, the Court found no proper basis for the Counterclaim. The 1st Respondent's claim for notice pay premised on failure to give resignation notice, and the 2nd Respondent's defamation-style claims for damages and a compelled newspaper apology, were all disallowed.

p. 8
04

Remedies

Holding

Reinstatement declined; 12 months' salary as compensation plus one month's notice pay awarded, with interest, certificate of service and costs

Reasoning

Reinstatement was inappropriate given the time elapsed since separation. The maximum compensation of twelve months' salary was granted, taking into account the Claimant's length of service and the Bank's mishandling of the sexual harassment complaint, particularly the failure to investigate. Notice pay was awarded, but gratuity failed for lack of evidential support.

p. 8

Legal principles established

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  • Having a sexual harassment policy is not enough; the employer must make it work, including by investigating complaints
  • Where a resignation is not voluntary but compelled by the employer's conduct, it amounts to constructive dismissal
  • A branch manager aware of a sexual harassment complaint should be neutral and investigate rather than demand proof from the complainant

Court orders

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  1. 1.Judgment in favour of the Claimant for 12 months' salary in compensation (Kshs. 1,596,000)
  2. 2.One month's salary in lieu of notice (Kshs. 133,000), total award Kshs. 1,729,000
  3. 3.Interest at court rates from the date of judgment until payment in full
  4. 4.Certificate of service to be issued to the Claimant
  5. 5.Costs of the case to the Claimant
  6. 6.Dismissal of the Respondents' Counterclaim in its entirety
  7. 7.Dismissal of the claims of sexual harassment and discrimination for lack of proof

Authorities

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Legislation

  • Employment ActSection 6
  • Employment Rights Act 1996 (England)Not specified
  • Labour Relations Act Number 66 of 1995 (South Africa)Not specified

Cases cited (2)

  • Coca Cola East & Central Africa Limited v Maria Kagao Ligaga
    [2015] eKLR
  • Kenneth Kimani Mburu & another v Kibe Muigai Holdings Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (specific enabling provision not stated in judgment)

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, "Maiyo v Kenya Commercial Bank & another (Cause 632 of 2019) [2024] KEELRC 26 (KLR)", Case Analysis (2024). Cause No 632 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/26/eng@2024-01-25

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