At the Safaricom customer care desk, Eva Bessy Kathambi spoke to customers for so long that her vocal cords jammed. She lost her voice.
The problems with her vocal cords began a series of events that saw Ms Kathambi get retired from Safaricom on medical grounds. She had been hired in 2008 and left the telecommunication company in 2012.
The matter did not end there. In June 2013, she sued Safaricom as a result of the termination. The court file later went missing. It was reconstructed by a court order issued in 2021.
The file having been reconstructed, both sides were heard before the Employment and Labour Relations Court in Nairobi.
On July 25, Justice James Rika ordered Safaricom to pay Ms Kathambi Sh2.5 million for causing her pain, suffering and mental anguish.
The telco was also ordered to give her a certificate of service and to cater for the money she used to prosecute the case.
As per Justice Rika’s summary of the pleadings, Ms Kathambi was employed by Safaricom on May 5, 2008 as a customer care representative. Her letter of appointment is dated February 25, 2008. She was aged 26 years when she was appointed.
“She was medically examined before appointment and was confirmed to be in good health, in particular with regard to her ears and throat. Her work entailed, but was not limited to, working at the Safaricom’s call centre. She constantly communicated to Safaricom’s customers, receiving and attending to their complaints. She constantly wore headsets while discharging her role,” wrote the judge.
Ms Kathambi told the court that she served diligently until she was diagnosed with functional dysphonia [vocal cord paralysis].
“She lost her voice. She was operated for thymus swelling in March 2011, but her voice did not improve. She had repeated throat endoscopy [insertion of an instrument in the body to show what a part being examined looks like],” the judge wrote.
The court heard that Safaricom’s doctors recommended that Ms Kathambi be placed on sick leave and thereafter placed on a different assignment, away from the call centre.
She was recalled after one month and deployed to the SMS centre. On October 9, 2012, at the age of 31 years, she was retired on medical grounds. She told the court that prior to her sacking, she had a question-and-answer session with former CEO, the late Bob Collymore, where she wrote down her answers as she couldn’t speak.
The court heard that Ms Kathambi was required to sign a letter dated October 5, 2012 exonerating Safaricom from liability.
“She refused to sign the letter,” the judge wrote.
By 2015 when Ms Kathambi amended her claim, the court heard, she had had 17 endoscopies.
“It was recommended that she takes vocal care. She underwent voice therapy sessions. Safaricom paid for only four sessions and ceased further payment without reason. Ms Kathambi continued to pay for herself for another six months, and only stopped paying when she ran out of funds,” Justice Rika wrote.
Ms Kathambi told the court that in light of her injuries, it has not been easy to secure another job as many prospective employers are concerned about her medical condition.
In its defence, Safaricom denied having exposed Ms Kathambi to any risk of injury which was known, or which ought to have been known, or which was reasonably foreseeable.
Any injury to Ms Kathambi, Safaricom said, was not attributable to the nature of the work she was engaged in, or the use of the headsets provided to her.
“The control on the use of voice, in terms of audibility, is exclusively within the user’s prerogative,” Safaricom told the court, adding that it had no direct control on device audibility.
Safaricom denied subjecting Ms Kathambi to prolonged hours while receiving calls. It produced details of shifts and offs, noting that customer care representatives took breaks between work and had two days off every week.
The telco added that it did not fail to provide safe and proper devices to Ms Kathambi. It denied her claims about negligence, carelessness and unspecified breach of statutory duty.
On the disappearance of the file, the judge wrote: “The original file went missing and orders for reconstruction of the file were issued on October 8, 2021. That explains, partly, why the claim has not been disposed of, since 2013.”
When she gave evidence on July 26 and 27, 2022, Ms Kathambi told the court that she was assigned line 100 at the call centre, taking care of customer needs.
“In 2010, she lost her voice for 10 days. She was there for about two months, before being moved to the 234 line, dealing with M-Pesa queries. She continued to lose her voice and was moved to the voiceless SMS section. She worked at the SMS section until October 12, 2012, when she was retired on medical grounds,” wrote the judge as he summarised her evidence.
Before employment, she told the court, there were comprehensive medical tests including ENT (ear, nose and throat) examination, which she passed.
“The call centre employees at first had a Nortel system, using the Oracle system, which managed calls. They had headsets which they shared. There was no call intrusion from call managers. When the process was digitised any call manager could intrude. The employee had to shout to hear and to be heard by the customer. Three or four call managers would intrude, compelling the employees to shout,” reads the judge’s summary of her testimony.
“She endured social intolerance. People would comment that she is a beauty who could not talk. She was car-jacked, and could not scream. She has engaged in casual tasks since retirement. She was studying at the university (and) a very unkind and uncultured lecturer would ask other students ‘to assist that mute’. She was a mute to her lecturer. She suffered mental anguish. People would say that she was beautiful, but nonetheless a mute,” wrote the judge.
The court heard that Safaricom offered her ex-gratia payment (payment for damage) of Sh717,000. She was paid two months’ salary for each complete year of service. The court further heard that the sum was paid pursuant to a court order in a different case.
Safaricom’s response was presented to the court by Odhiambo Ooko, its senior manager for labour relations.
“The documents exhibited by the Safaricom showed that the headphones that were in use at the time of Ms Kathambi’s employment. Mr Ooko did not have documents showing purchase of the headphones,” noted the judge.
Mr Ooko added that the medical surveillance policy came into force on October 1, 2013, when Ms Kathambi had already left.
After the hearings, the judge said he was convinced that Ms Kathambi suffered injury or illness to her throat.
“On August 2, 2010, Professor Muthure Macharia, an ENT expert and head and neck surgeon, reported that Ms Kathambi had a history of recurrent dysphonia,” wrote the judge.
“Ms Kathambi was seen by other doctors, including Safaricom’s own doctor, Harish Rupani. Dr Rupani reported on November 23, 2010, that Ms Kathambi had a voice problem since June 2010. The problem recurred in August 2010. Dr Rupani diagnosed Ms Kathambi with functional dysphonia. It was recommended that Ms Kathambi undergoes microlaryngoscopy, if her voice did not improve. This was the view of Safaricom’s own doctor,” he added.
“It is a condition attributed to her occupation, based on a series of medical reports,” he said.
“Ms Kathambi’s vocal cord paralysis coincided with the changeover from analogue to digital system. She told the court that a number of her colleagues sustained ENT injuries or illnesses mostly of their ears. They suffered acoustic shock. It can reasonably be inferred that the devices supplied to Ms Kathambi, which allowed three to four call managers to intrude on her system, compelling her to constantly raise her voice to be heard, were not fit for purpose,” the judge said, noting that Safaricom offered no evidence to counter that of Ms Kathambi.
“There is sufficient evidence to show that Safaricom acted negligently and did not provide Ms Kathambi with proper and safe call devices and a safe system of work. The parties, no doubt, were in an employer-employee relationship. It is fair, just and reasonable to impose full liability on Safaricom,” added Justice Rika.
However, the judge rejected Ms Kathambi’s pleading to be paid for future medication and to be paid for special damages.
“Special damages must not only be specifically pleaded, but also specifically proved,” he said, citing a Court of Appeal decision to that effect.
The judge, however, felt there was enough reason to give Ms Kathambi the Sh2.5 million in general damages. The award will accrue interest at the court’s rates until the payment is done.
