Firm ordered to pay woman Sh5.9m over sexual harassment

A company has been ordered to pay Sh5.9 million to a manager sacked after lodging a sexual harassment complaint. [Courtesy]

A company has been ordered to pay Sh5.9 million to a manager sacked after lodging a sexual harassment complaint.

The Court of Appeal affirmed Labour Court’s findings that the firing of the IT manager had to do with sexual advances made by the G4S human resource director.

“No evidence was brought of SRM’s poor performance before her complaint was made.

“It would be proper for a reasonable and objective observer to make the inference and reach the conclusion, as the ELRC did, that all the circumstances pointed to a hounding of SRM from her employment, arising from her formal demand and complaint of sexual harassment,” ruled Justices Wanjiru Karanja, Mumbi Ngugi and Pauline Nyamweya.

In a trial that lasted 15 years, the complainant code-named SRM stated that she was employed by G4S Security in 1985, until August 18, 2006, when she was kicked out.

At the time she was leaving the company she was earning Sh247,000. She argued that her understanding of the employment was that G4S would not discriminate against her and that it would provide her with a conducive working environment free from sexual discrimination, exploitation and harassment.

Her claim before the court was that between 2005 and 2006, the human resources boss made unwelcome sexual advances at her.

SRM reported the matter to her immediate supervisor Philip Holi, who directed that the Managing Director of G4S Security resolve the issue.

Complaint dismissed

According to her, the MD in the presence of the legal advisor dismissed the complaint as trivial and indicated that the HR director was free to act as he deemed fit. He directed her to drop the claim.

SRM did not stop there. On May 15, 2006, she wrote a formal claim through her advocate, which was neither responded to nor acted upon by G4S. Instead, the company slapped her with warning letters, accusing her of misconduct.

She asked the court to award her Sh6.7 million as damages for maliciously sacking her but the Labour Court instead awarded her Sh5.9 million.

G4S and the director filed their replies denying the claims. They said concerns about her work were raised in October 2004.

After the Labour Court allowed SRM’s case, the defendants lodged an appeal claiming there was no proof of sexual harassment. They argued that she never raised the particulars of sexual harassment.

G4S stated that there was no evidence that it failed to investigate the complaint. It claimed she was fired over keeping time, unauthorised leave, management of G4S software licenses and her service levels. The duo also argued that the award was too excessive.

In her cross-appeal, SRM faulted Labour Court’s Justice Nelson Abuodha, arguing that he erred in awarding her low damages. She asserted there was overwhelming evidence of sexual advances.

SRM detailed correspondences on her complaint about sexual harassment between the director, Holi and herself.

She narrated that after she responded with details of the unwelcome advances, there was no further communication from the management. According to her, the HR director instructed the G4S transport manager to withdraw her office driver when she declined his sexual advances.

She stated that the director apologised.

The Court of Appeal found that the formal complaint was evidence to illustrate the nature of the defendant’s conduct.

According to the judges, sexual harassment undermines dignity at work. They observed lack of intent cannot be a ground to dismiss a complaint, instead, the weight lies on if the victim finds the conduct unacceptable.

“Therefore, the question as to what constitutes unwanted conduct is not what the court or tribunal would or would not find offensive, but whether the individual victim has made it clear that he or she finds the conduct unacceptable,” the court ruled.

“The evidence of unwanted conduct was proved by the letter of  January 20, 2006. The innocence or otherwise of his actions are immaterial.”