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ELRCDismissedNot stated in judgment· [2024] KEELRC 1950 (KLR)

Mbugua v Resort (Cause E096 of 2022) [2024] KEELRC 1950 (KLR)

Employment and Labour Relations Court
25 July 2024
8,442 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~34 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a hotel employee's dismissal because he refused to attend his own disciplinary hearing, even though the employer lacked a sexual harassment policy.

What this practically means

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Executive summary

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The claimant, re-employed in 2016 as Deputy General Manager of the respondent hotel in Kwale County, was dismissed on 17 August 2020 following complaints by eight female employees that he had sexually harassed them. He claimed the dismissal was an orchestrated scheme linked to a June 2020 COVID-19 crisis meeting on downsizing staff, and sought a declaration of unlawful termination, 12 months' salary as compensation (about Kshs. 6,973,200), punitive damages and costs. The respondent raised a jurisdictional objection based on pending Kwale defamation suits, which was dismissed in a ruling of 4 May 2023. Eight complainants and management witnesses testified to detailed incidents of sexual harassment. The court analysed the employer's statutory duty under section 6 of the Employment Act, supported by ILO standards and case law, to institute and publicise a sexual harassment policy. It found the respondent deficient: employees did not know the policy, and the claimant himself chaired the Gender Exploitation Committee, so the harassment case against him was 'hazy'. However, on procedure, the claimant was invited to a disciplinary hearing on 3 August 2020 and again on 10 August 2020 but refused to attend unless his advocates, only available in September, could accompany him. The court held that section 41 requires only a fellow employee or shop floor representative, that his refusal amounted to disobedience of a lawful command under section 44(3) and (4)(e), and that he squandered his chance to be heard, justifying termination. The claim was dismissed with each party bearing its own costs, and both relief for notice pay, compensation and punitive damages and costs were refused.

Key legal issues

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01

Sub judice / jurisdiction objection based on pending defamation suits

Holding

Objection dismissed; this court retained jurisdiction

Reasoning

The respondent's objection that the truth of the sexual harassment allegations was sub judice in Kwale defamation suits filed by the claimant was addressed in a ruling of 4 May 2023 in which the jurisdiction challenge was dismissed. The court proceeded to determine the claim on its merits.

p. 11
02

Whether termination was substantively justified on allegations of sexual harassment

Holding

The evidence of sexual harassment was hazy given the absence of a known workplace policy; the complaints could not found a finding of valid reason against the claimant

Reasoning

The court analysed section 6 of the Employment Act, ILO standards and case law on employer duties. Witnesses did not know the sexual harassment policy, and the claimant chaired the Gender Exploitation Committee, making complaints against him impracticable. Without a policy, known reporting procedures or definition communicated to employees, the case of harassment against the claimant was 'hazy'.

p. 14
03

Whether the termination was procedurally fair under section 41

Holding

The claimant was accorded procedural fairness but squandered the opportunity by refusing to attend the rescheduled disciplinary hearing, justifying termination

Reasoning

The claimant was invited to a hearing on 3 August 2020, indicated unavailability, and was granted a rescheduled hearing on 10 August 2020 but again did not attend, insisting his advocates would only be available in September. Section 41 entitles an employee to a fellow employee or shop floor representative, not to hold the employer at ransom. His failure amounted to refusal of a lawful command under section 44(3) and (4)(e).

p. 15

Legal principles established

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  • An employer must have in place and publicise a policy against sexual harassment under section 6(2) of the Employment Act; absence of a known policy weakens the employer's case that an employee committed sexual harassment
  • Where an employee is accorded the opportunity to attend a disciplinary hearing and fails to attend, the employer is justified in terminating employment; an employee cannot insist on attending only when his advocates are available
  • Directions to attend a disciplinary hearing are lawful and proper commands; refusal to obey constitutes misconduct under section 44(3) and 44(4)(e) of the Employment Act

Court orders

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  1. 1.The claim herein is dismissed
  2. 2.Each party bears its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Employment Actsections 6, 6(1)(a), 6(2), 6(3), 41, 41(1), 42(1), 43, 43(2), 44, 44(3), 44(4)(e), 45
  • ILO Declaration on Fundamental Principles and Rights at Workdefinition of sexual harassment
  • ILO Convention 190 on Violence and Harassment Convention, 2019Article 1

Cases cited (15)

  • Walter Ogal Anuro vs Teachers Service Commission
    [2013] eKLR
  • Patrick Njuguna Kariuki v Del Monte (K) Limited
    Cause No. 9523 of 2011
  • Mathew Kipchumba Koskei V Baringo Teachers Sacco
  • Daniel Musinga T/A Musinga & Co. Advocates v Nation Newspapers Limited
    (2006) eKLR
  • Oyatsi v Judicial Service Commission
    (Petition E111 of 2021)
  • Charles Musungu Odana v Kenya Ports Authority
    [2019] eKLR
  • Kombo v Riley Falcon Security Services Ltd
    [2023] eKLR
  • Reuben Ikatwa & 17 Others v Commanding Officer British Army Training Unit Kenya & Another
    [2017] eKLR
  • Margot Rendall-Speranza v International Finance Corporation
    (Decision of 1997) (1998)
  • Kenya Union of Commercial Food & Allied Workers v Meru Central Dairy Co-operative Union Limited
    [2015] eKLR
  • CNR; FITM & another (Respondent) (Cause E204 of 2021)
    [2022] KEELRC
  • Ooko & another v SRM & 2 others (Civil Appeal 195 & 197 of 2019 (Consolidated))
    [2022] KECA
  • Dzila v Kwale County Assembly Service Board & 6 others (Cause 21 of 2020)
    [2023] KEELRC
  • Terry Muringo Muchiri v K-Rep Group Limited
    [2021] eKLR
  • Matilda Tenge Mwachia v Kenya Industrial Estate Limited & another
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; jurisdiction objection by the respondent dismissed in a ruling delivered 4 May 2023

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbugua v Resort (Cause E096 of 2022) [2024] KEELRC 1950 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1950/eng@2024-07-25

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