On informed consent to use employee's image on social media: case review of Abinayo v House & Farm Company Limited [2024]

Background of the case:

On the use of employees’ images, in the case of Abinayo v House & Farm Company Limited [2024] KEELRC 2832 (KLR), the Petitioner alleged that the Respondent used her photographs and videos to promote its business on social media without her consent. 

After she raised a grievance, the Respondent belatedly issued a consent form for her to sign, authorizing the use of her images. 

The Petitioner declined to sign the form and continued to object to the commercial use of her images without any benefit to her. Despite her objections, the Respondent persisted in using the images, claiming that her consent was implied by the employment relationship. 

A few months later, the Petitioner was terminated without a valid reason.

Court's Analysis/Findings: 

The court found that the termination was unfair, as the Respondent attempted to retroactively obtain consent and dismissed the Petitioner after she refused to grant it and raised concerns. 

Court's Holding: 

The court held that the Respondent violated the Petitioner’s right to privacy and fair labour practices by failing to obtain informed and explicit consent for the commercial use of her images. 

As a result, the Respondent was ordered to pay the Petitioner Kshs. 2,000,000/= in damages.

Courtesy of: KEL

Unfair Dismisal/Sexual Harassment -Case of Kiiru v Ministry of Lands & Settlement & another (Cause 1560 of 2018) [2024] KEELRC 2824 (KLR)

Background:

The Claimant was appointed to the Ministry of Lands on 28^th December, 1981, as a Cartographer. On 21^st 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 14^th 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 22^nd 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 5^th 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 16^th 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 8^th 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.

Disciplinary Proceedings - Case of Jason v Bobmil Industries Ltd (Cause 409 of 2019) [2024] KEELRC 2504 (KLR)

Background

In Jason v Bobmil Industries Ltd [2024] KEELRC 2504 (KLR), the Respondent’s witness testified that the Claimant was not subjected to a disciplinary process due to the intimidating circumstances surrounding his status as a licensed gun holder. 

The witness alleged that the Claimant frequently carried his firearm into the Respondent's premises and displayed it in an intimidating manner, including placing the gun on the table during discussions, creating an atmosphere of fear. The witness also stated that no formal grievance was reported to management regarding this behaviour. 

In his defence, the Claimant testified that he was specifically hired because he was a gun holder and that during his recruitment interview, he was instructed to always report for duty with his firearm.

This assertion was not rebutted by the Respondent during the proceedings. 

The Court's Determination:

The court found that the Respondent had failed to undertake a proper disciplinary process concerning the allegations of lateness, absenteeism, or intimidating conduct as a gun holder. 

Furthermore, the court noted that the termination letter issued to the Claimant did not reference intimidation as a reason for the dismissal. 

As a result, the Respondent could not rely on this claim to justify bypassing the disciplinary process. 

The court concluded that the Respondent’s failure to address the alleged misconduct through established disciplinary procedures rendered the termination procedurally unfair.

Read Full Case Here

Insubordination - Case Law Review: Kodi v Safarilink Limited [2024] KEELRC 2348 (KLR)

Background:

On insubordination, in the case of  Kodi v Safarilink Limited, the Claimant was accused of failing to report to work when her presence was required due to increased workload caused by the COVID-19 pandemic. 

Despite initially agreeing to come in, she ultimately did not report to duty and failed to communicate her absence. 

In her response, the Claimant stated that she was called in on a weekend, which was her scheduled off-duty period. 

She admitted to being aware of the need to report but chose not to do so as she was intoxicated and wanted to avoid violating the Respondent’s policy against intoxication.

Analysis:

The court noted that off days are mutually agreed periods when an employee is not expected at work. If an employee is asked to work on an off day but has prior commitments, communicating this is necessary so that alternative arrangements can be made. 

Court's Holding:

In this case, the court held that, although the Claimant could not be faulted for beginning her weekend early, she should have confirmed her unavailability when asked to report. Once she agreed to come in, the argument of being off-duty was no longer valid.

 

Full case available  Here

Tax Alert: The Supreme Court overturns the Finance Act, 2023

Introduction;

The Supreme Court of Kenya upheld the Finance Act, 2023, on Tuesday 29th October 2024, overturning a decision by the Court of Appeal that nullified the legislation on constitutional grounds. The Judgment addressed several issues related to the legislative process and specific provisions of the Act, ultimately setting aside the Court of Appeal’s (“CoA”) decision that had declared the entire Act unconstitutional.

The seven-judge bench, led by Chief Justice Martha Koome, ruled that Parliament adhered to public participation requirements when drafting the Finance Bill.

This judgment follows the CoA’s earlier ruling, which had deemed the Act unconstitutional due to insufficient public participation.

While the apex court ruling represents a setback for Kenyans facing increased taxation, it is a victory for the government in its effort to raise revenue through new tax measures. 

Background;

The Act, was assented to on 26 June 2023, and subsequently faced multiple constitutional petitions at the High Court (“HC”). 

At the High Court, the petitioners argued among other grounds that the Act required the concurrence of the Senate and further that there was no adequate public participation in the enactment of the Act. In its judgment, the High Court delivered Judgement and declared certain provisions of the Act unconstitutional and upheld the rest.

The Government appealed to the CoA whereby the Appeals croassappeals were consolidated. Upon hearing the parties, the CoA in its Judgement declared the entire Act unconstitutional, on the basis that the process of enacting the Act was procedurally flawed and that the principles of public participation were not adhered to in the enactment of the Act.

The Government the appealed to the Supreme Court of Kenya being the apex court for a final determination of the dispute.

Court's Holding (Supreme Court);

 "The preliminary objection on this Court’s jurisdiction is overruled. We hereby set aside the Court of Appeal’s finding declaring the entire Finance Act, 2023 unconstitutional," said the Supreme Court's ruling in a significant win for the government.

 Key implications of the decision;

The decision confirms the legality of Finance Act, 2023, which has been a focal point of national debate and public demonstrations.

Finance Act, 2023, which proposed tax increases on essential items like fuel to expand the government's revenue base, had faced widespread public backlash since its inception, culminating in nationwide protests.

The Finance Act 2023, signed into law by President William Ruto in June 2023, introduced a Housing Levy requiring a 1.5 percent contribution from employees, matched by employers, to fund affordable housing.

It also raised the value-added tax (VAT) on fuel from 8 percent to 16 percent, contributing to a rise in fuel prices, among other changes.

COVID-19 Update: What is a reasonable care for Employees Working from Home or Remotely?

By Messrs, B.N., O.G., and I.O.

In as much as the employers have the managerial discretion to undertake various strategies in ensuring the sustainability of their various businesses during this pandemic, it is highly expected that the rights of the employees are upheld at all times pursuant to Article 41 of the Constitution of Kenya including other reasonable enabling laws. The reasonable care for employees is interpreted as the specific duties and responsibilities by the employers to ensure the safety of its employees. 

However, the Employment Act, 2007 requires that the employment contracts state the place of work (see section 10(2) (f)) and it is highly likely that the majority of the employment contracts have such a provision. In situations where the employee has opted to work from home or remotely from work due to pandemics such as COVID19 outbreak, they are highly likely to be in breach of their contract and legal provisions as set out as a requirement by the employment Act not unless it is a result of the agreement between the employer and the employee. 

The duties that an employer has under the OSHA would extend to circumstances where such an employee renders services to the Company remotely from home. For purposes of the OSHA, the employee’s ‘workplace’ would be her/his home. Ordinarily, how the employer will ensure a healthy and safe working environment would depend on the sort of work that is being carried out from home and what equipment and assistance may need to be provided to employees by their employer. The specific duties of the employers are to ensure the safety, health, and welfare of employees at all times within the workplace (see section 6 of the Occupational Safety and Health Act).

The key duties applying to the working activity and workspace includes such as management and conducting all the work activities aimed at ensuring the employee has a reasonably practicable to uphold their safety, health and welfare, provision of safe systems of work that have been planned, organized and maintained; provision of assessment of risks and implementation of appropriate control measures and ensuring there are plans in case of any emergencies.

Additionally, the Responsibility for the health and safety at work pursuant to the OSHA 2007 rests with the employer notwithstanding whether they employee carries his/her duties from office or at home as agreed between themselves as noted above. It is therefore upon the employer to consult their employees and assure themselves that the employee is aware of the risks associated with working from home or remotely; that the assigned work activity or temporary space of work is suitable; that there is provided suitable equipment enabling work to be done; and that there are pre-arranged means of contact.

In addition to the OSHA, the Employment Act requires an employer to regulate the working time of its employees with due regard to their health and safety and to their family responsibilities. Employers are required to, as far as is reasonably practicable, provide a workplace that is free of risk to the health and safety of its employees and that this requirement would persist during the COVID-19 pandemic and the Lockdown subject, of course, to an employee actually working remotely from home. In the case of distant work, the employer shall consider suitable working time arrangements, special provisions concerning assignment and delivery of work, reporting requirements. Moreover, the employer is responsible for healthy and safe working conditions. It shall be considered carefully how to limit the options for the employee to change his working place at the employee’s discretion.

In the normal course, an employer may require their employees to sign an indemnity form in which they warrant, among other things, that their home office is safe. While the present circumstances are extraordinary, it would probably be appropriate for an employer to ask its employees to sign and return a warranty and indemnity form in relation to working remotely from home. 

However, it would probably also be prudent to take further steps under Section 6 (2)(c) of the OSHA to, inter alia, meets the requirement of “the provision of such information, instruction, training, and supervision as is necessary to ensure the safety and health at work of every person employed”, through appropriate information and instructions being given to employees working from home on how to avoid or limit the risks to their health and safety in the home working environment.

The employer is further responsible for providing the technical means for distant work and for ensuring that the employer’s property (i.e. the equipment provided to employees) is well preserved.

#KeepSafe

#CovidIsReal

THE EMPLOYMENT AND LABOUR RELATIONS COURT HAS JURISDICTION OVER FOREIGN COMPANIES (Case Review: Meta Platforms, Inc & another v Motaung & another; Kenya National Humans Rights Equality Commission & 9 others (Interested Parties) [2023] KECA 996 (KLR)

Background/Facts:

This decision in the stemmed from rulings delivered on 6th February 2023 and 20th April 2023 in Nairobi ELRC Petition E071 of 2022 and Nairobi ELRC Petition E052 of 2023, respectively. In ELRC Petition No. E071 of 2022, Daniel Motaung, representing former and current Facebook content moderators, filed a suit against Samasource Kenya EPZ Ltd (operating as Sama), Meta Platforms Inc., and Meta Platforms Ireland. Motaung claimed poor working conditions, unfair labor practices, and violations of fundamental rights. Samasource contested the case, arguing that Motaung, being a foreign national not residing in Kenya, lacked the legal standing to file the petition. 

 Furthermore, they contended that Meta was not subject to the court’s jurisdiction as it is a foreign corporation with no operations in Kenya. Meta Platforms Inc. and Meta Platforms Ireland sought dismissal of the case on jurisdictional grounds, but the court, ruled in favour of its jurisdiction and ordered Motaung to properly serve both Meta entities. Dissatisfied with this decision, Meta appealed, challenging the court's jurisdiction.

Reasoning; 

In ELRC Petition No. E052 of 2023, several former employees filed a suit against Meta, Samasource, and Majorel Kenya, claiming their rights had been violated due to an unjustified redundancy process. They also filed an application where they sought to effect service upon Meta Platforms Inc & Meta Platforms Ireland Limited in their principal offices situated in USA, wherein the court granted them ex parte orders maintaining the status quo pending hearing and determination of the application. In response, Meta and its affiliates sought to have the case struck out, arguing that the court lacked jurisdiction. The court’s ruling on determined that the nature and extent of Meta’s liability, including violations occurring virtually within Kenya’s jurisdiction, would be examined. Meta, once again, appealed this decision on jurisdictional grounds.

In the Court of Appeal,  the appellants argued that the Employment and Labour Relations Court (ELRC) could not assume jurisdiction over Meta because proper service had not been effected as required under Kenyan law, and even when service was allowed, the foreign defendant had a right to challenge jurisdiction. The 1st Respondent countered that the issue was now moot since service had been completed, and Meta was actively trading in Kenya through platforms like Facebook Pay and Facebook Marketplace, paying taxes to the Kenyan government. The appellants, however, insisted that Kenyan laws cannot be applied to foreign corporations unless there is evidence of them trading in the country, and enforcing such laws would breach the sovereignty of their home jurisdiction.

The two appeals were determined together.

Issues for determination:

The appeals centered on:

i.  whether the ELRC had jurisdiction over Meta, given the company’s foreign status and; 

ii. the nature of its operations in Kenya.

Analysis:

Civil Appeal No. 232 of 2023 - On the question of jurisdiction, the Court of Appeal found that the Appellants did not advance any arguments that contested the court’s power to hear and determine the matter, which is the ultimate definition of jurisdiction. They only stated that they are foreign companies who must not be subjected to the Constitution or laws of Kenya, hence ELRC has no jurisdiction over them. The Court of Appeal considered the 1st Respondents arguments that the alleged violations occurred in Kenya, he was employed by the Appellants as a content moderator and the Appellants have a virtual and physical presence in Kenya. The Court of Appeal found that all these arguments that were advanced by parties were issues of fact which could not be determined in an interlocutory application but were meant to be determined in a full hearing. Consequently, the question of jurisdiction that had been put forward by the Appellants, fails.

Civil Appeal No. 445 of 2023 - Here, the Appellants claimed that because there was no employer- employee relationship between them and the 3rd to 186th Respondents and that they were foreign companies, the ELRC cannot assume jurisdiction. The Court of Appeal found that there was no improper exercise of jurisdiction or misdirection by the ELRC.

Court’s Holding/Conclusion:

The Court of Appeal found that the ELRC indeed has the proper jurisdiction over foreign companies in view of the fact that the Respondents' rights were under threat and as such, the orders issued to maintain status quo were valid to the extent of preventing further infringement of the said rights. Additionally, it found no merit in both appeals and dismissed them with costs to the respondents.