The Employment and Labour Relations Court (ELRC) in Nairobi has upheld the dismissal of Henry Maina, a former Regional Director at ARTICLE 19 (Eastern Africa). The court found that the civil society organization had valid reasons and followed fair procedure in terminating his contract over allegations of sexual harassment and bullying.
Maina, whose employment was terminated in June 2019, had sued his former employer, arguing that his dismissal was unlawful and a violation of his constitutional rights. The court ultimately ruled that the termination was lawful and fair under the Employment Act.
ARTICLE 19 Eastern Africa maintained that Maina was dismissed for gross misconduct following an internal investigation into whistle-blower complaints. The grounds cited were:
- Sexual Harassment: Sending unwelcome and suggestive text and WhatsApp messages to a female colleague, including messages like asking to “tuck them in bed” or sing a lullaby while outside their door.
- Bullying: Misconduct related to the issuance of staff contracts, which was found to have created tension and a hostile work environment among employees.
In determining the substantive fairness of the termination, the court delivered strong findings against the Claimant’s defenses:
- No “Right to Offend”: The court firmly rejected Henry Maina’s argument that his messages were protected under the constitutional “right to offend” in the exercise of expression. The judge ruled that such conduct was clearly unwelcome and created a hostile work environment, which supersedes the right to freedom of expression.
- Sexual Harassment Proven: The court found sufficient, corroborated evidence that the sexual advances were unwelcome, noting the seriousness of the conduct which affected the colleague’s productivity.
- Policy Validity Upheld: The Claimant’s challenge that the Sexual Harassment Policy was applied retrospectively was dismissed. The court held that this technicality was irrelevant, as sexual harassment was already a recognized offense under the existing Human Resources Manual and Kenyan law.
Despite the Maina alleging multiple procedural flaws, the court concluded that Article 19 had substantially complied with the law. He had claimed that there were media leaks, denial of documents, and refusal to allow him to cross-examine his accusers.
The court emphasized that due to the sensitive nature of sexual harassment, the employer was not legally required to compel the victims to testify in person against the perpetrator, relying on a Court of Appeal precedent. Maina was informed of the reasons for potential termination, participated in the investigation, and was afforded an opportunity to present his defense and statements.
The court, having found the dismissal to be lawful, rejected the majority of Henry Maina’s prayers, including his claims for:
- Damages equivalent to 12 months’ salary.
- Compensation for constitutional rights violations.
- Claims for salary underpayments (disallowed due to lack of proof).
The court only entered judgment in Henry Maina’s favor for the part of his claim related to accrued but untaken annual leave. Because the employer could not prove the leave had been taken, the court awarded Maina Ksh. 710,572.50. This is the equivalent of 18 months’ salary for accrued leave, with interest, plus the costs of the suit.
Download the full judgment HERE.