WhatsApp chats presented in court.
Four years ago, blogger Cyprian Nyakundi published on his website some information about Makini School. The post has since been deleted.
The Makini School management immediately embarked on investigating how the information it later described as “defamatory threats” reached the blogger.
Somehow, as a Nairobi court was later told, a school laptop being used by a suspended human resources (HR) staff was still logged on to WhatsApp.
Officials at the school went through his chats, the court heard, and found material to suggest that he was discussing some of the matters that the blogger had written about. The HR official owned up to the transgression and was fired.
Later, a teacher at the school, with whom the HR staffer had been discussing some of the matters, was also dismissed.
The school cited sabotage and collusion as the reason for sacking the teacher, Mr Japher Nanjira Musa, who taught Islamic Religious Education (IRE).
That teacher later headed to court, and that was the basis of a case filed at the Employment and Labour Relations Court in Nairobi in 2022.
The verdict by Justice Jorum Abuodha delivered on January 17 will be a warning to employees who chat on their employers’ computers.
One of the contentious matters in the case was: is it right for an employer to invade an employee’s privacy while investigating a matter? Mr Musa’s lawyer argued that the evidence against him was “not legally obtained” and that “it further violated the rights to privacy”.
Makini, in response, told the court through its counsel that the right to privacy is not absolute and that checking the WhatsApp chats was “proportionate to the seriousness of the allegations”.
The court declared that privacy was not invaded because it involved a company computer.
“It is the court’s opinion that the said WhatsApp messages were not held by (Mr Musa) but in the company’s laptop thus his privacy was not invaded,” observed Justice Abuodha, citing two cases determined separately in 2017 on the issue of privacy and workplace platforms.
So, what did the parties argue in court?
Mr Musa told the court that he had been a teacher at Makini for 18 years.
He was an IRE teacher, an upper school sports coordinator, the chairperson of the Makini Independent Electoral Commission, the upper school transport coordinator, the Chairman of the Makini Teachers Welfare Group and the IRE panel head among other responsibilities.
He was also a shop steward (a person who represents workers when dealing with the management) at Makini after being elected to that post in September 2021.
He said that there was a series of events around posting about Makini on a blog that saw the HR officer, Mr Silas Wafula, suspended for gross misconduct.
After Mr Wafula’s suspension, Mr Musa was summoned for interrogation and disciplinary hearing. He later got a suspension letter on August 30, 2022, and was subsequently asked to collect his belongings from his desk.
He received a “show cause” letter on September 1, 2022. This was followed by a dismissal a month later.
In court, he filed the case alongside the Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (Kudheiha) demanding reinstatement to his position without loss of benefit.
He asked the court to declare the disciplinary hearing that saw him lose his job “unfair, illegal and irregular”.
The school, on its part, told the court that “Cyprian Nyakundi published various defamatory statements against the School” and that it “sought to investigate and ascertain the source of the various defamatory threats”.
Makini further said that during the investigations, Mr Wafula admitted to have been the author and was put under suspension.
As Mr Wafula was under suspension, the school said, it found in his work laptop WhatsApp conversations with various people. The school told the court that Mr Wafula was actively being used by Mr Musa and Kudheiha “to gain confidential information regarding the school”.
The school said Mr Musa’s response to the accusations he faced was “unsatisfactory”. It also said that during the hearing, Mr Musa and his representative engaged the disciplinary committee “in never-ending sideshows as to compliance with Evidence Act on screenshots and electronic evidence”.
Eventually, Mr Musa was given a dismissal letter on October 13, 2022. The school told the court that the dismissal was as a result of “gross misconduct including collaborating with others to sabotage the Makini School”.
One of Mr Musa’s defences about discussing sensitive material about the school was that he was just playing his part as a shop steward. The school accused him of discussing the matters without informing the management.
Having heard from both sides, the judge – despite finding that the access to WhatsApp chats was not an infringement on privacy – ruled that the sacking was irregular. One of the facts raised was that Mr Musa was not given enough time to prepare his defence before the committee.
“The court finds that a fair procedure was not followed at the disciplinary hearing,” said Justice Abuodha, who further faulted the committee that sat to adjudicate the matter as it was improperly constituted.
“The dismissal was therefore unfair both on substantive fairness and procedural fairness,” stated the judge.
The judge did not grant Mr Musa’s plea for reinstatement, however, “since it is past three years since he was terminated”.
He ordered Makini to pay him a month’s salary in lieu of notice, and a 10-month salary as compensation for unfair termination.
