Court affirms NGO's decision to fire female boss for sexual assault

At the heart of the case was a house dinner in February 2021, where the incident happened. The victim told the court that when she got drunk, their host took her to a bedroom. [iStockphoto] The Employment and Labour Relations Court in Nairobi has affirmed a Non-Governmental Organisation's (NGO's) to fire a female manager for sexually harassing her colleague. Justice Benard Manani, in his judgment, said that the NGO, codenamed TF, was justified in kicking out its former employee, identified as WNN, through internal processes without involving the police. The judge said that independent investigations were conducted, and the employee was allowed to dispute the claims. "In the premises, I do not think that the respondent (TF) erred in processing the complaint against the claimant (WNN)through its internal disciplinary mechanism instead of escalating the matter to the police. Having regard to the foregoing, I arrive at the conclusion that the respondent's decision to terminate the claimant's contract of employment was justified," ruled Justice Manani. TF employed WNN in 2014 as a donor compliance manager. At the heart of the case was a house dinner in February 2021. TF argued that she learnt about the assault during the investigations despite being in the same house with the victim and another colleague. She stated that there was no evidence to support the claims. She said the disciplinary trial was an ambush and ended as a dress-down exercise. WNN asserted that despite the criminal claims, no complaint was made to the police. On the other hand, the NGO told the court that after the victim complained about the assault, it appointed an investigator who made an adverse finding against WNN and her colleague. TF stated that on the evening of February 5, 2021, WNN and two other workmates (including the victim) met at one of the workmates' houses for a get-together. It alleged that the three admitted that they engaged in drinking alcohol before proceeding to one of the bedrooms where the two sexually assaulted the victim. According to TF, WNN did not deny that she was in the same bed with the victim. At the same time, the NGO argued that her colleague, who was also said to have participated, confirmed that the three ended up in the same bed. Nevertheless, it stated that she could not confirm what WNN did. The victim told the court that when she got drunk, their host took her to a bedroom. She said that the host then started touching her inappropriately but was unable to fend her off because of her drunken state. Justice Manani was told that WNN joined in, and she begun fondling her. ''As such, the court is convinced that her capacity to give informed consent to what happened to her had been compromised,'' the judge said. When engaged by an investigator, the court heard that the host confirmed that she had touched the victim's breasts. Justice Manani was told that WNN joined in, and she begun fondling her breasts and private parts. The victim said she was helpless. In her rejoinder, WNN said she staggered into the bedroom and passed out. At the time of the incident, the host confirmed that the victim was inebriated. As such, the court is convinced that her capacity to give informed consent to what happened to her had been compromised," he said She told the investigator that on the dawn of the next day, she found herself in bed alone. The Judge observed that the host confirmed that the victim was intoxicated. He said that the complainant therefore could not two consent. "The above evidence confirms that the victim was indeed sexually assaulted. At the time of the incident, the host confirmed that the victim was inebriated. As such, the court is convinced that her capacity to give informed consent to what happened to her had been compromised," he said. According to the Judge, WNN was blowing hot and cold in the position she took. He observed that she initially told the investigator she was drunk and could not remember what happened. On the other hand, before the disciplinary panel, she denied the claims. "Having regard to the aforesaid set of facts, would a reasonable employer have reached a similar finding as the respondent? I think yes. The ambivalence of the claimant on the events of the night in question would have led any reasonable employer to disbelieve her version of events," argued Justice Manani.

Court affirms NGO's decision to fire female boss for sexual assault

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