Workplace nickname lands female lawyer in trouble with employer

 

By 

Nation. Africa

Summary

·         The woman, name withheld for legal reasons and dignity, was sacked by Kituo cha Sheria after a male employee complained of sexual harassment for allegedly being referred to as “baby boy”

A Kenyan lawyer is in court fighting to retain her job at a civil society group after being sacked over

allegations of calling her junior male staff nicknames that the employer considered to be sexual harassment.

The woman, name withheld for legal reasons and dignity, was sacked by Kituo cha Sheria after a male employee complained of sexual harassment for allegedly being referred to as “baby boy”.

According to court papers, she also used to refer to the unidentified man as “boy lollipop”. The NGO said that she nicknamed the man without his consent. She was working as a programme coordinator until November 2022, when she was sacked over the allegations of sexual harassment.

After being sacked, the woman sued Kituo cha Sheria, alleging unfair dismissal and the Employment and Labour Relations Court is now expected to rule on whether giving an employee an affectionate name that is deemed to be suggestive, amounts to sexual harassment at the workplace.

The court will also determine whether the process of termination was lawful.

The woman has since lost a bid to suspend the termination of her employment pending the hearing and determination of her petition in which she is seeking reinstatement and damages. She also wanted the court to block the organisation from recruiting another person to replace her.

Through Muma and Kanjama Advocates, the organisation said in its court filings that a complaint was made against the lawyer on April 23, 2022, from a member of the programmes’ team.

She was asked to respond and she was subjected to the disciplinary process, in accordance with section 41 of the Employment Act, 2007.

“It was concluded that the petitioner was involved in sexual harassment of an employee whom she had supervisory control over by repeatedly using the term “baby boy” and “boy lollipop” when referring to him without his consent and through advances of a sexual nature that were both verbal and physical,” said the advocates.

A disciplinary committee found that the petitioner’s management style was characterised by micro-managing of staff and favouritism.

Unhealthy work environment

Another allegation is that she lacked collegiality, which resulted in an unhealthy work environment that affected the mental health of staff within the organisation, among other reasons, in the notice of termination.

The board of directors adopted the committee’s findings and resolved to terminate the lawyer’s employment and the decision was implemented by a letter dated November 11, 2022.

She lodged an internal appeal against the termination and lost. According to the advocates, the reasons for termination were valid and lawful as informed by a board committee hearing and the petitioner was duly heard but failed to exculpate herself.

“The petitioner’s rights had not been violated as alleged. As a result of the complaints against the petitioner, two of the complainants have resigned from the first respondent’s employment,” said the organization’s advocates.

In her suit, the woman alleged a breach of rights and freedoms by the organization and its executive director Annette Mbogoh.

Unfair dismissal

Her claim is that the termination followed an inquiry without giving her an opportunity to be heard and the dismissal was also unfair because the due process in the organisation’s human resource manual was not followed.

She claims that the NGO violated her rights to fair labour practices, non-discrimination, fair administrative action and fair hearing as enshrined under Articles 41, 27, 47, and 50 of the Constitution.

She said that during the termination notice, her salary was withheld and that though she had filed an appeal to the full board of directors on November 14, 2022, challenging the termination, the organisation and the executive director did not acknowledge or respond to the appeal.

Declining her request for interim orders suspending her termination, Justice Byram Ongaya ruled that the court cannot stay the termination of an employee at the initial stage of a dispute because it would amount to the court unduly interfering with a decision already made by the management within its discretion.

“The court considers that indeed, once a termination is pronounced by the employer, there is nothing to be arrested by way of a stay order, as such stay order would not amount to setting aside the termination decision,” said Justice Ongaya.

“Further, damages by way of back payment consequential to a reinstatement order after a full hearing of the suit would appear to show that the applicant would not suffer irreparable injury, as such payment would return the employee to full position as though termination had not been imposed,” he stated.

Relating to her request for an order to preserve the vacancy flowing from the termination, the court ruled stated that damages are available in the circumstances of the case. The court held that the temporary injunction as requested is capable of being remedied with damages.

The court also declined a request by the organisation to strike out the name of Ms Mbogoh from the lawsuit.

“Considering the prayers and the allegations, the petitioner has established that Ms Mbogoh is, indeed, a necessary party for the effectual, effective, and complete determination of the issues in dispute. While Ms Mbogoh acted in an official capacity, the petitioner makes specific allegations against her and which can only be resolved one way or the other after the full hearing of the application,” said the judge.