[2019] KEELRC 1477 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NUMBER 1083 OF 2010

DR LUCY NJERI MUGWERE..................................................CLAIMANT

VERSUS

KENNETH MAJAU MUGAMBI...................................1ST RESPONDENT

KENYA METHODIST UNIVERSITY...........................2ND RESPONDENT

JUDGEMENT

1. By a memorandum of claim dated 7th September, 2010 the claimant alleged that by a contract in writing dated 19th March, 2009 the respondent offered her employment as Assistant Lecturer with effect from 1st May, 2009. It was a term of her contract that she would be entitled to:

a. Salary inclusive of allowances amounting to Kshs 82,600/=

b. 30 days leave and leave allowance equivalent to her half basic pay per year.

c. Medical outpatient cover of Kshs 50,000/= and a family in patient cover of Khs 500,000/=

2. The claimant further averred that in the course of her employment, the 1st respondent Mr Ken Mugambi engaged in conduct that created an intimidating, hostile or offensive working environment. More specifically Mr Mugambi’s conduct involved several sexual advances and request for dates on different occasions. Snatching courses already allocated to the claimant and giving to other lecturers, discrimination in award of courses and inhuman treatment knowing well the claimant’s daughters had been involved in a road accident yet demanded her physical presence to conduct a student evaluation of her. According to the claimant, the student evaluation were carried out arbitrarily and in a biased manner where Mr Mugambi would pick a few evaluations while the claimant was teaching hundreds of students. Mr Mugambi would ignore evaluations by students who spoke well of her.

3. By a memo dated 7th June 2010 the claimant wrote to the respondent’s Deputy Vice Chancellor Academic Affairs and raised a number of issues which were rampant in her workplace such as bullying, intimidation and course snatching to sexual harassment. The claimant further pleaded that she consistently attended class. She was surprised to received internal memo dated 8th June, 2010 from the Deputy Registrar inviting her to the Staff disciplinary Committee on 11th June, 2010 to defend herself listing five allegations against her.

4. On 11th June, 2010 the claimant attended the staff disciplinary meeting but to her surprise her accuser the 1st respodnent herein was one of the members of the Disciplinary Committee in total violation of the rules of natural justice. According to the claimant the staff disciplinary committee appeared to have had a fixed mind despite protest by the claimant that they should have constituted the committee to look into the allegations the claimant had raised against the 1st respodnent as she was the first to raise the allegations. To the claimant’s surprise, by a letter dated 12th July, 2010 the respondent terminated the claimant’s service with immediate effect and offered to pay her terminal dues which were set out in the letter.

5. The respondent on its part pleaded that the suit is bad in law for offending conscience of the court in that the claimant suit is based on dishonesty and forged documents. According to the respondent, the claimant furnished to the university false resumes and upon false representation that the claimant was a Phd student at the University of Leicester UK, holder of bachelor of education from Kenyatta University and Doctorate in Business Administration from Texas USA.

6. The respondent further pleaded that the claimant’s tenure as an assistant lecturer between May, 2009 and July 2010 was characterized by dishonesty. Particularly, the respondent alleged that the claimant instead of holding separate lectures for diploma and under graduate students as per the university’s timetable and days of the week specified. She combined the classes and taught them as one class. The respondent further alleged that the claimant taught for only 16 hours instead of 45 hours required and further that she submitted false attendance registers and failed to make herself available for consultation by students.

7. The respondent averred that it was an implied term of the contract of employment that during her tenure, she would not take up any other employment yet the claimant in breach of her contract served as a part-time lecturer at Jomo Kenyatta University and was paid salaries.

8. The respondent further pleaded that during the period the claimant was employed by the respondent she fundamentally breached her obligations arising under her contract as she performed her duties incompetently that crisis emerged in the 2nd respondent’s Department of Business Administration and a great anxiety arose amongst her students as the end of every semester approached the claimant had taught as little and failed to interact with students that they did not know what to expect in connection with end of term examinations. The respondent further contended that as a result of the fundamental breaches of her contract, the termination of the claimant’s became a necessity and was done after being afforded a chance to be heard. On 27th April, 2010 the 1st respondent under whom the claimant worked recommended that she be disciplined and on becoming aware of the recommendation, the claimant falsely accused the 1st respondent of abusing her sexually.

9. During the hearing the claimant indicated to the court that she adopted as her evidence the averments in the memorandum of claim. She further stated that she had taught for fifteen years and that she had received so many commendations. According to her, the picture presented by the respondent was not true. It was her evidence that she taught diligently and included student evaluations but was still dismissed. It was her evidence that she complained about the work environment and wanted to be left alone to do her work. It was her evidence that she spoke to Professor Mwambia and asked if he could intervene and talk to the 1st respondent and he said he wanted to intervene but was intimidated by the 1st respondent. According to her the 1st respondent snatched students from her and incited them against her. It was her evidence that she asked for a transfer to Nairobi Campus to attend to her daughter who had been involved in a near fatal accident but the respondent refused.

10. In cross-examination she stated that she did not know the source of the C.V. at page I of the respondent’s bundle and that it was not the C.V. she submitted while seeking employment. She denied delaying with any student’s result and further stated that she never received any complaint during her employment.

11. The claimant further stated that she never understood why her classes were never allocated to other lecturers. Questioned by the court, the claimant stated that her relationship with the 1st respondent was good at the start but deteriorated when she refused his advances. According to her she wrote several letters to the DVC and VC complaining about sexual harassment by the 1st respondent but never received any response. The claimant further stated that she was never issued with a notice to show cause to respond to the charges against her.

12. The respondent’s 1st witness Ms Anastacia Mureithi informed the court that at the material time she used to work as an administrative officer at the Business Department. She used to interact with students and handle lecturer evaluations. According to her the department had a procedure for dealing with complaints against students and lecturers. Students could report complaints against lecturers. The most complaint against the claimant was absenteeism. She further stated that it was departmental procedure for evaluation to be done. She conceded that the claimant’s evaluation was done when she was dealing with the issue of her daughter’s accident.

13. The respondent’s second witness who was also the 1st respondent stated that he was the Dean of School of Business and Economics. According to him the respondent filed a counterclaim and documents in support of the counterclaim.

14. In cross-examination he stated that there was a lot of dishonesty by the claimant. According to him the claimant could invite students to sign even for classes they never attended.

15. It was further his evidence that he was invited to the disciplinary hearing as a witness and that he gave his evidence and left. He further stated that the claimant’s allegations of sexual harassment came after he recommended disciplinary hearing. Mr Mugambi further stated that for two weeks students were not taught and they were beginning to come to his office to ask about the claimant. That was the reason her classes were given to other lecturers. He however stated that he did not have evidence that the claimant was lecturing at Kenyatta University. In re-examination he stated that the claimant gave a resignation notice.

16. Employment relationship though contractual in nature, is for personal service. Trust, mutual respect and harmonious working environment are some of the key ingredients of a suitable working environment.

17. The court has reviewed and carefully considered the claim herein, material filed in support thereof as well as the respondent’s response and documents. What emerges is a classical case of no love lost between the parties.

18. Going by the numerous correspondence especially emanating from the claimant one cannot help figure out a very noisy and disharmonious working relationship. It is one that the court is not surprised ended the way it did. Hearing this case also proved difficult for the court. Many times the court had to intervene and request the claimant who was representing herself to stick to the issues in dispute.

19. The Employment Act makes provisions for termination of employment contract. The provisions are at two levels. First, there must exist a valid or justifiable reason for termination of service. Second, the termination must be carried out following a fair procedure. That is to say the employee must be furnished with the reasons for the intended termination and given an opportunity to respond to the allegations and call witnesses if any.

20. The claimant was accused by the respondent of among others, absenteeism, irregular and poor class attendance, insubordination and lack of appropriate work ethics. On the other hand the claimant complained of sexual harassment, intimidation and bullying by the chairman of the department Mr. Ken Mugambi.

21. Whereas the claimant was summoned to a disciplinary hearing, no evidence was tendered by the respondent that it ever attempted to investigate the claimant’s complaints for whatever they were worth especially the complaint against bullying and sexual harassment.

22. Section 6 of the Employment Act requires of an employer who employs twenty or more employees to issue a policy statement on sexual harassment. The policy should contain among others a statement explaining how complaints of sexual harassment may be brought to the attention of the employer. The respondent herein did not produce any such policy and further still did not produce any evidence to show the claimant’s complaints were investigated and a finding thereon. All the respondent did was to claim that the complaint of sexual harassment was raise by the claimant when she became aware of the pending disciplinary process against her.

23. In terms of process, although the claimant was summoned to a disciplinary hearing, no evidence was produced to show what transpired at the hearing. No minutes of the disciplinary hearing were attached. The court is therefore unable to know whether the claimant was afforded an opportunity to respond to the accusations against her. The memo summoning the claimant to the disciplinary hearing made broad allegations against the claimant without providing details or referring the claimant to another source where details could be found. In the absence of the minutes for the disciplinary hearing the court is unable to tell if the claimant was confronted with the details of the allegations against her and her response.

24. In a claim for unfair termination of service, the burden is cast upon the employer to prove the reasons for termination and further that the termination was carried out through a fair procedure. In the court’s view, this did not happen in this case leading to a finding that the termination was unfair in terms of section 45 of the Act.

25. Concerning compensation, the court as observed above, noted that the relationship between the claimant and the respondent was a difficult one. The claimant struck the court as a very difficult person not easy to sustain a structured discussion with. There may have been valid reasons for termination of her contract but these were mishandled by the respondent.

26. In the circumstances the court will award the claimant Kshs. 291,000/= being three months’ salary as compensation for unfair termination of service. The claimant shall further have costs of the suit. The award is in addition to the terminal benefits offered in the termination letter dated 12th July, 2010 and will attract interest at court rates from date of Judgment until payment in full but subject to taxes and statutory deductions.

27. It is so ordered.

Dated at Nairobi this 17th day of May, 2019

Abuodha J. N.

Judge

Delivered this 17th day of May, 2019

Abuodha J. N.

Judge

In the presence of:-

....................................for the Claimant and

........................................for the Respondent.