Social networking site Facebook and WhatsApp on a smartphone.
Mr OL, a chief executive officer of a Nairobi tech firm, used to send WhatsApp memes and messages to Ms RA, a junior finance and administration associate at the company, who used to respond with smiling emoticons (emojis).
Some of his messages were laced with sexual undertones. Others crossed an invisible professional line.
At first, the exchanges seemed casual. The CEO often embraced informal communication. He mixed humour with work conversations. The names of the parties and the company are withheld for legal reasons.
One message, sent in September 2022, carried sexual connotations while another involved a TikTok video of an ohangla song with lyrics containing erotic innuendo. This was one year after Ms RA’s employment. She said that her working relationship with the CEO was cordial and professional.
The messages unsettled the junior employee. She saw them as inappropriate and suggestive, given the corporate power dynamics. He was her direct supervisor and the company’s chief executive, co-founder, director and shareholder.
Still, she kept working, and the relationship remained outwardly professional, though beneath it the discomfort grew.
Months later, the tension deepened. In January 2023, he sent her yet another set of memes unrelated to work. Days later, after a client meeting, the CEO questioned her performance at the meeting.
The conversation shifted. He suggested that her silence in meetings with company clients could be misinterpreted and encouraged her to participate in the discussions. He then kissed her without consent while he gave her a ride home, she told the Employment and Labour Relations Court.
The next day, another message arrived on her phone. It was a TikTok video with suggestive lyrics. The pattern continued. set of work-unrelated memes.
Days later, colleagues attended a night out with a client. They drank and socialised. In the early hours, Ms RA asked to collect her bag from the CEO’s car before leaving. What followed became the centre of the dispute.
She told the court the CEO sexually assaulted her in the vehicle. She said she was distressed, cried, and later sought medical help.
A colleague who found her shortly after the assault incident testified she was shaken and in tears. She reported the incident at a hospital but hesitated to involve the police immediately.
The CEO denied the allegations and said the interaction was different and disputed any assault. Disputing the claimant’s version of events, he contended that the claimant appeared very intoxicated and that on their way to the parking lot from the club, she had put her hand on his waist and was uttering sexually laced words to him.
He denied ever touching her and said it was the claimant who was behaving inappropriately as she fondled and touched him.
In the days that followed, communication did not stop. The CEO sent more messages. Some referenced what he described as a “one-night stand.” He asked why she had “ghosted” him (suddenly ended communication without explanation).
She responded that they should move on as if nothing had happened.
However, work became difficult. She testified that her mental and emotional state deteriorated. She sought counselling and struggled to maintain normal working relations.
In March 2023, she formally reported the matter to the company’s Chief Operating Officer (COO) and the Human Resource Director (HR Director), complaining about the CEO’s conduct and the suggestive digital content.
The employer placed her on compulsory paid leave for 28 days and initiated an internal investigation.
Ms RA subsequently resigned on May 5, 2023, citing constructive dismissal. She attributed her departure to the alleged assault, a flawed internal investigation, an abrupt demand to return to work while on sick leave, and a proposed 30 per cent salary reduction.
But concerns soon emerged regarding the manner in which her complaint was investigated, her recall to work after being placed on temporary paid leave, and a proposed 30 per cent reduction in salary across the company.
She raised issues about fairness and possible conflict of interest. She also complained about being removed from workplace communication channels. These included the company's WhatsApp group, email, and Slack channel.
To her, the environment felt unsafe. She resigned in May 2023 and sued, seeking Sh5 million in damages for wrongful termination. She told the court the resignation was not voluntary. She said the workplace had become unbearable.
The company disagreed and also filed a counterclaim seeking Sh6.6 million from Ms RA for resigning without issuing a written termination notice as required under section 35 of the Employment Act.
It argued she left on her own and that it had taken steps to address her complaint. In regard to the WhatsApp messages, the CEO said Ms RA replied with delight and even added smiling emoticons in her replies, including to the TikTok video.
In its judgment, the court examined the WhatsApp messages first.
“By all means, making fun and using joke innuendos should not have included sharing sexually explicit material and texts with the claimant, who was his junior colleague and direct report. That was conduct that was simply not acceptable in the workplace,” said the court.
It was observed that regardless of his personality and his manner of interactions with people, the CEO was bound to observe professional boundaries.
On the TikTok video, the court noted the accompanying translation showed the sender understood its meaning. It said the content carried sexual innuendo.
“It is notable that the WhatsApp text bearing the song in question is accompanied by a translation of the lyrics in English. This, therefore, discounts the first respondent’s (CEO’s) testimony that he did not know the meaning of the song. Evidently, the song contains sexual innuendos,” said the court.
Taken together, the messages amounted to sexual harassment. The court stressed that such communication breached workplace standards, especially where a superior targets a junior employee.
“The text messages sent by the first respondent to the claimant, when considered alongside the definition of the term sexual harassment, lead me to conclude that the same constitute sexual harassment,” ruled Justice Stella Rutto.
The court found that digital messages, even informal ones, carry weight, and when sent by those in power, they can define the boundary between humour and harassment.
It rejected the argument that the employee’s responses justified the conduct.
“The claimant’s response to the message by way of emoticons was not a valid defence for the first respondent’s actions. The bottom line was that the 1st respondent should not have shared the message with the claimant in the first place,” the court ruled as it then turned to the events of January 2023.
It found that a sexual encounter occurred. It also held that the claimant had proved assault on a balance of probabilities.
The court said the CEO’s actions represented “the worst form of gender-based violence at the workplace.”
The impact on the working environment was decisive as the court found the workplace had become “hostile, intolerable and unconducive.”
Given the CEO’s position, the imbalance of power made the situation worse. He was not just a colleague. He was the claimant’s supervisor and the company’s top decision-maker.
The court concluded she had no real choice but to resign, and that amounted to constructive dismissal.
“It is apparent that the first respondent’s actions towards the claimant had created a work environment that was hostile, intolerable and unconducive and she had no option but to resign from the employment,” said the court.
It also highlighted the employer’s duty to provide a safe workplace and respond effectively to complaints.
The claimant was awarded one month’s salary in lieu of notice and ten months’ salary as compensation, totalling Sh1.32 million. The company’s counterclaim was dismissed.
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