Background:
The Claimant was appointed to the Ministry of Lands on 28th December, 1981, as a Cartographer. On 21st November, 1997, she was suspended for “recent indiscipline attitude” without particulars on the allegation. The charges against her reopened allegations of absenteeism from 1993, a matter already resolved. She was reinstated on 14th July 1998 but unable to start work immediately due to her illness. Upon her return, she was informed that she could not resume work and later received a letter from the Principal Secretary (PS) dated 22nd October 1998 stating that her whereabouts were unknown yet she had written to the PS. She was charged with absenteeism, but after responding to the charges, her salary was reinstated in March 1999, though it was never paid. The PS suspended the Claimant on 5th May, 1999, for refusing to apologize to her supervisor over grievances she raised regarding sexual harassment. Despite having previously resolved the allegations of absenteeism and misconduct from 1991 to 1997, the PS reopened these charges. Her appeals were unsuccessful and she was ultimately dismissed on 16th November, 1999 on grounds of gross misconduct. She filed the present suit alleging unlawful and unfair termination.
Issues for analysis:
1. Whether the
Claimant’s dismissal was lawful, fair, and followed the due procedure.
2. Remedies available to the Claimant
Court's Determination:
On the first
issue, the Respondents claimed that the Claimant’s dismissal was justified due
to misconduct, including failure to comply with instructions, making
unsubstantiated allegations, and failing to address previous charges of
absenteeism. They also claimed that due process was followed in handling the
Claimant’s case. However, the Court found that the disciplinary process was
procedurally unfair since the interdiction lasted nine months, which exceeded
the prescribed time frame. Furthermore, the interdiction was related to
allegations of absenteeism, lateness and hostility towards colleagues, which
had been previously considered and resolved. The Claimant was later suspended
on May 5, 1999, for failing to apologize for allegations of sexual harassment
against her supervisor made in her letter dated 8th April
1999.
The Court also found that the disciplinary process was unfair because the
Respondent reopened previously resolved matters, leading to double jeopardy.
The Court noted that the Claimant's grievance against her supervisor regarding
sexual harassment, was not properly investigated. Instead of addressing the
grievance, the PS directed the Claimant to apologize, without a formal inquiry
into the claims. The dismissal letter cited gross misconduct but failed to
provide specific details. Testimonies confirmed that the dismissal was based on
the Claimant’s grievance rather than on legitimate misconduct.
Consequently, the Court held that the dismissal was unfair, unlawful and based
upon her making of a well-founded grievance against her supervisor alleging
sexual advances or harassment.
On the second issue, the Court stated that at the time of the Claimant’s
dismissal, the Employment Act was not in force and compensation for unfair
termination under section 12 of the Act would not be available. Based on the
law prevailing at the time, the Court found the Claimant's dismissal amounted
to breach of contract and that she ought to be compensated as if she had
continued working and retired honourably in December 2021.
As a result,
judgment was entered for the Claimant against the Respondents for payment of
Kshs. 7, 462, 866.
Conclusion
This case underscores the importance of proper handling of sexual harassment complaints and adherence to due process in safeguarding employees' rights.
