A former Safaricom employee who resigned amid investigations into spying on a customer's sim card has lost his claim for unfair dismissal against the giant telco.
High Court judge James Rika has ruled that there was no evidence to show that Safaricom created a hostile environment that forced Timothy Oluoch Deya to resign.
The ex-Safaricom worker had sued for Sh1.09 million in salary in lieu of notice (of termination) and one year’s pay as compensation for unfair termination.
Mr Deya resigned from Safaricom on September 28, 2016, on medical grounds, as he had contracted several complications from his initial deployment to the customer experience department.
At the time, Safaricom had attempted to redeploy Mr Deya to its regional centre even as it investigated him for illegally accessing a customer’s mobile line without her authorisation or knowledge.
Mr Deya admitted to the court that he accessed the sim card illegally 56 times on diverse dates, but claimed he was helping a family friend.
He did not log in to the sim card access to Safaricom’s systems as required by company policy, prompting an investigation.
Mr Deya tendered his resignation one day after he was served with a hearing notice for the disciplinary proceedings.
The hearing was to be conducted on October 4, 2016, but Mr Deya failed to attend. He argued in court papers that he was unwell at the time.
Three years later, Mr Deya sued Safaricom for unlawful termination, arguing that the company had created a hostile environment that forced him to resign.
His claim was based on the labour principle of constructive dismissal, in which an employer uses underhand tactics to force its worker to resign to avoid terminating the contract.
Justice Rika in his ruling argued that constructive dismissal and unfair termination are different principles and that Mr Deya’s pleadings could not support his claim.
“He made himself scarce at the disciplinary process, where he could have challenged, or even disproved allegations of misconduct. He justified his absence on the ground that he was ill… He did not exhibit any letter he wrote to the respondent, or medical evidence to show that on 4th October 2016 he was bedridden,” Justice Rika said.
“Most likely, the claimant believed he was an ex-employee of the respondent, having successfully in his mind, short-circuited investigations into allegations of professional misconduct, and the proposed disciplinary process, by his resignation on 28th September 2016,” Justice Rika added.
Justice Rika said that Mr Deya may have had a case if he sought compensation for the medical conditions he contracted at the call centre, but the ex-employee did not raise such a claim in his pleadings hence the court’s hands were tied.
Mr Deya claimed that he was constantly harassed when on sick off and that the redeployment offered was not genuine.
He joined Safaricom in 2010 as a part timer but was offered a permanent and pensionable position in 2014.
In 2015 he was diagnosed with acoustic shock disorder, a condition that has affected hundreds of Safaricom customer care agents, and carpal tunnel syndrome which Mr Deya argued was triggered by typing as part of his regular duties.
Mr Deya said in court papers that after being diagnosed with acoustic shock disorder, the clinic sent his medical report to Safaricom’s human resource department, which refused to share the document with him.
Justice Rika held that Safaricom invited Mr Deya to discuss how best to redeploy him to avoid aggregating the medical conditions, but the ex-employee did not attend the meetings.
