The Employment and Labour Relations Court in Machakos has awarded a former secretary at the Kenya Union of Post-Primary Education Teachers (Kuppet) more than Sh2.8 million after finding that the union subjected her to an unfair disciplinary process and deliberately frustrated her employment until she resigned.
In the judgment, Lady Justice Jemimah Keli ruled that Ms Consolata Katua was constructively dismissed after the union withheld her salary, ignored her appeal against disciplinary action and created what the court described as a toxic work environment.
The court, however, upheld the legality of her initial suspension and found that the union had valid grounds to discipline her for insubordination.
Unlawful disciplinary process
Ms Katua, who served as personal secretary to Kuppet Secretary-General Akello Misori, had sued the teachers’ union and its secretary-general after resigning from her job in January 2025.
Kuppet National Governing Council led by Secretary General Akelo Misori address Journalist at Sportsview Hotel on September 1, 2024.
Photo credit: Lucy Wanjiru | Nation
She accused the union of subjecting her to an unlawful disciplinary process, violating her constitutional rights, withholding her salary and humiliating her after accusing her of leaking confidential information and insubordination.
In her case, Ms Katua sought millions of shillings in compensation, including damages for alleged gender discrimination, privacy violations, retaliation, unfair labour practices and breach of contract.
Court documents showed that the dispute began on September 23, 2024, when Kuppet suspended her for two months to pave the way for investigations into allegations of insubordination, divulging union information to unauthorised persons and using her office to solicit bribes.
The suspension letter ordered her to stay away from the office, refrain from discussing the matter with union officials and hand over union property, including laptops and passwords.
Ms Katua argued that the suspension was unlawful because she was neither issued a show-cause letter nor given a hearing before being sent away from work.
However, Justice Keli dismissed that argument, citing a recent Supreme Court decision affirming that employers are not required to hear employees before placing them on administrative suspension pending investigations.
“The suspension is held to have been legal and within the employer’s management prerogative,” the judge ruled.
The court found that Kuppet had properly explained the reasons for the suspension and limited it to two months pending investigations.
However, the judge identified serious flaws in the disciplinary process that followed.
Evidence before the court showed that Kuppet later issued Ms Katua with a show-cause letter and invited her to a disciplinary hearing on December 10, 2024.
The union relied heavily on a forensic report prepared by information technology consultant Francis Oluoch, alleging unauthorised transfer of union data and misuse of official devices.
But the court heard that Ms Katua repeatedly requested copies of the evidence against her and was only supplied with the forensic report on December 8, barely two days before the disciplinary hearing.
She also questioned the authenticity of the report, arguing that it was unsigned and unsupported by evidence of the author’s professional qualifications.
Justice Keli agreed that the delay in supplying the report denied the employee adequate time to prepare her defence.
“The failure to provide the claimant with the investigation report at the time of issuance of the show-cause letter, and only issuing the same two days before the hearing, breached her right to a fair hearing,” the judge ruled.
The court further faulted Kuppet for failing to respond to Ms Katua’s appeal after she challenged the disciplinary decision.
Although the union eventually found her guilty of insubordination and misuse of union property and imposed a six-month suspension on half pay, the court noted that her appeal was ignored entirely.
Justice Keli found that while the union had proved insubordination, the process used to discipline the employee was procedurally unfair.
The court pointed to Ms Katua’s admission that she failed to promptly comply with instructions from the secretary-general to circulate a disclaimer letter dismissing rumours that Mr Misori had resigned. She also admitted failing to properly file important union documents.
Kenya Union of Post Primary Education Teachers (Kuppet) Secretary-General Akello Misori.
Photo credit: Sila Kiplagat | Nation Media Group
The judge held that those actions amounted to insubordination under the Employment Act and justified disciplinary action.
But it was the treatment of the employee after the disciplinary decision that ultimately persuaded the court that she had been constructively dismissed.
Ms Katua told the court that after the disciplinary process ended, her December 2024 and January 2025 salaries were reduced to zero due to deductions, leaving her unable to meet basic needs.
Kuppet argued that the deductions arose from statutory obligations and other recoveries, insisting that she remained on the payroll.
However, the court questioned why deductions that had existed before were suddenly wiped out from her entire salary immediately after the disciplinary proceedings.
“How can deductions which had been there lead to zero salary all of a sudden on conclusion of the disciplinary process?” Justice Keli asked in the judgment.
“What was she to eat, pay rent with and use to meet her normal basic needs? The employment no longer made sense.”
The court found that the deductions violated Section 19 of the Employment Act, which limits salary deductions to two-thirds of an employee’s wages.
Justice Keli said the union, whose mandate is to defend workers’ rights, ought to have known the law and accused it of deliberately frustrating Ms Katua’s continued employment.
“The respondents deliberately frustrated the continued employment of the claimant by creating a very toxic work environment,” the judge ruled.
The court rejected some of Ms Katua’s claims, including allegations of gender discrimination and privacy violations, saying there was no evidence to support them.
It also dismissed electronic evidence such as screenshots and digital records produced by the claimant because they lacked the mandatory certification required under Section 106B of the Evidence Act.
In the final orders, the court awarded Ms Katua one month’s salary in lieu of notice amounting to Sh308,613 and compensation equivalent to eight months’ salary totalling Sh2.46 million.
She was also awarded Sh30,000 in overtime pay for 2024, bringing the total award to Sh2.8 million, plus costs and interest if the amount is not settled within 30 days.
