Courts have in recent years issued a series of decisions reinforcing employees’ rights, awarding compensation where workers were unfairly dismissed, subjected to degrading treatment or forced to quit because of unlawful conduct at the workplace.
From sexual harassment and discrimination based on HIV status to humiliating searches and rushed disciplinary hearings, the courts have reminded employers that workers are entitled to dignity, fair treatment and due process.
In one of the recent cases, the Employment and Labour Relations Court (ELRC) awarded RAO Sh1.32 million after finding that she was forced to resign because of sexual harassment by her supervisor.
RAO, a finance and administration associate at an IT firm, sued her supervisor, IL, and the company, arguing that his conduct had made the workplace intolerable and amounted to constructive dismissal.
She accused the supervisor of sending sexually suggestive WhatsApp messages, including a link titled “What happens when you stop having sex”, and alleged that he sexually assaulted her after a client meeting in January 2023.
She later lodged an internal complaint after seeking medical treatment and counselling. The company placed her on paid leave and appointed an independent investigator.
RAO resigned on May 5, 2023, citing the alleged assault, the handling of her complaint, her recall from leave and a proposed 30 per cent salary cut.
The supervisor denied the allegations, while the company argued that she had resigned voluntarily.
Sexual harassment is prevalent in workplaces.
Photo credit: Photo I Pool
The court, however, found that the supervisor’s conduct “crossed the professional line” and breached Section 6(1) of the Employment Act and ILO Convention No. 190.
“The 1st respondent’s actions (Supervisor) had made the claimant’s continued employment with the 2nd respondent intolerable and unconducive,” the court ruled.
Justice Stella Rutto said RAO was entitled to leave her employment on that basis, with or without notice.
She was awarded Sh1.32 million, comprising one month’s salary in lieu of notice and 10 months’ salary as compensation.
In another case, the Court of Appeal upheld an award of Sh4.7 million to Hudson Kidaha after finding that his former employer, Romageco Kenya Ltd, unfairly dismissed him while he was on sick leave.
Mr Kidaha had been hospitalised and granted sick leave when the company accused him of failing to account for some money.
However, he was not issued with a show-cause letter or invited to a disciplinary hearing. Instead, the company published a newspaper notice declaring that he had deserted work.
The ELRC awarded him Sh4.7 million, including unpaid commissions, 12 months’ salary as compensation for unfair dismissal and other dues.
The employer appealed, arguing that Mr Kidaha had been lawfully dismissed for misconduct. The appellate court rejected the argument and upheld the award. The judges said he had not been given an opportunity to respond to the allegations.
“There is no doubt that no notice to show cause was issued to the respondent on account of the misappropriated funds, nor was he given a chance to counter the allegations,” the court said.
The court also found that the claim over unremitted money appeared to have been an afterthought intended to facilitate his dismissal.
In July, the ELRC awarded 122 teachers a total of Sh12.2 million after finding that the Teachers Service Commission unfairly subjected them to disciplinary action for leaving their stations in North Eastern Kenya because of insecurity.
Teachers Service Commission (TSC) headquarters in Upper Hill, Nairobi.
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The teachers, through the Kenya Teachers in Hardship and Arid Areas Welfare Association, had challenged the disciplinary action and orders requiring them to return to Mandera.
The court awarded each teacher Sh100,000 for violation of the right to fair administrative action.
The judge found that the disciplinary process was procedurally unfair and that the teachers could not be treated as having deserted duty after raising legitimate security concerns.
The court quashed the decision finding them guilty of absconding duty and the subsequent order requiring them to return to their former stations.
However, it affirmed that TSC has the constitutional mandate to deploy and transfer teachers.
The court directed that the affected teachers could be deployed to Garissa County but excluded Hulugho, where they had raised security concerns.
The judge cautioned against portraying the entire North Eastern region as insecure, saying this would undermine children’s constitutional right to education.
In July last year, the ELRC faulted the Kenya Defence Forces for violating the rights of PKJ after he was removed from military training following an HIV test.
An HIV test kit.
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PKJ, a former National Youth Service member, said he had successfully gone through the KDF recruitment process in 2021 and reported to the Recruits Training School in Eldoret.
He was removed from the programme on January 2, 2022, after he was allegedly informed that a medical test had shown that he was HIV-positive.
He sued the Attorney-General, Defence Cabinet Secretary and Defence Council, arguing that his removal violated his rights to equality, dignity, fair labour practices and fair administrative action.
The KDF denied recruiting him, saying he had not been shortlisted and that the documents he relied on were irregular.
The court, however, found that the recruitment and training process was subject to constitutional labour standards.
Justice Maureen Onyango directed the KDF to publish a policy on the recruitment and retention of people living with HIV that complies with the Constitution and previous orders of the HIV and AIDS Tribunal. The court also ordered the KDF to report back on compliance.
In another case, the ELRC awarded ZKD Sh1 million after finding that her constitutional rights were violated when she and 35 other female workers were forced to remove their underwear during a workplace search for a discarded sanitary pad.
ZKD had worked for Sun Power Products Ltd, trading as Brown’s Food Company, for about six years when the incident occurred in July 2023.
She told the court that two senior managers ordered the women to strip in a company toilet to establish who had been menstruating and had disposed of the sanitary pad.
Justice Jacob Gakeri found that the exercise violated her rights to dignity, privacy and fair labour practices.
“The respondent’s officers violated the petitioner’s right to human dignity,” Justice Gakeri ruled, describing the treatment as degrading and demeaning.
The company admitted the incident occurred but said the managers had acted outside company policy. It said the two were subjected to disciplinary action and later left the company, while affected workers were offered counselling.
The court nevertheless held the employer responsible, saying the managers had exercised authority entrusted to them by the company.
The company said the conduct was against its policies and values and had not been authorised by its leadership.
In a recent decision, the Court of Appeal clarified what amounts to a fair disciplinary hearing. In a case involving Wells Fargo Ltd and former employees led by Symon Karanja, the court said an employee must be given reasonable time to understand allegations, seek representation and prepare a defence before a disciplinary hearing.
The case involved 16 cash officers who were dismissed in December 2013 after stopping work over welfare concerns.
The company argued that their action amounted to gross misconduct and exposed it to serious financial risks because of their access to ATM passwords and combinations.
The employees, however, said they had raised legitimate grievances which their supervisors failed to address.
The ELRC found that they had engaged in a work stoppage in pursuit of their grievances and that the employer had no valid reason to dismiss them.
The company appealed, but the Court of Appeal upheld the finding on the fairness of the disciplinary process, saying the fact that a hearing was held was not enough.
“While a hearing was conducted, the compressed timeline between the show-cause letters and the hearing did not afford the respondents a meaningful opportunity to prepare their defence,” the court said.
The court said there is no fixed number of hours or days that amounts to reasonable notice. What matters is whether the employee has enough time, in the circumstances, to understand the allegations, seek representation and meaningfully respond.
