The Employment and Labour Relations Court in Mombasa has ordered a non-governmental health organisation to pay a former senior employee Sh7.9 million for unfair sacking.
Justice Agnes Nzei ruled that the Johns Hopkins Programme for International Education in Gynecology and Obstetrics (Jhpiego) should pay Dr Judy Kairo the money, the costs of her lawsuit and interest at court rates.
Jhpiego did not disclose or demonstrate the procedure used in selecting Dr Kairo and another employee for redundancy, the judge said.
Justice Nzei said it was not clear whether the redundancy was based on the seniority in time, skill, ability and reliability of each employee in the class affected by the redundancy.
“This failure on the part of the respondent (Jhpiego) rendered the entire process unprocedural, unlawful and therefore unfair. The entire process amounted to unfair termination of employment,” she ruled.
Sacking and then rehiring a worker at lower or even higher levels of employment could not be described as redundancy.
“Such a process bears the countenance and hallmark of an illegal process whose end goal may be to illegally change employees’ terms and conditions of employment without consulting the employees as contemplated in Section 10(3) (6) of the Employment Act,” Justice Nzei said.
But Justice Nzei disagreed that Dr Kairo’s constitutional rights were violated and that the petition did not raise any question of interpretation or application of the Constitution.
Justice Nzei also declined to grant the doctor’s request to be paid damages for sexual harassment and be reinstated.
The court noted that Dr Kairo’s oral evidence contradicted the averments in her petition and affidavit.
“In view of the major contradiction between the petitioner’s pleadings and evidence adduced by the petitioner in court, I am unable to make a finding that she was a victim of sexual harassment and was indeed subjected to sexual harassment,” said Justice Nzei.
Among other things, Dr Kairo wanted the court to rule that Jhpiego created a hostile working environment for women and discriminated against female employees.
She said she was hired on March 6, 2017 as a regional senior programme delivery adviser and posted to Kilifi.
She worked “diligently and faithfully” until December 3, 2018, when she was “wrongfully and unlawfully” summarily sacked on account of redundancy.
She told the court that during her employment she was never subjected to any disciplinary action and did not take her annual leave.
When she was in Mombasa for training in 2018, she claimed, a senior Jhpiego manager came to her hotel room and demanded intimacy but she refused and bruised his ego.
She then reported the matter to the human resources director of Jhpiego’s Kenya office. That person, she claimed, was a personal friend of the senior manager.
After ascertaining that there was no substantive response to her complaint, she escalated it to the head office in the United States and its intervention stemmed the tide.
Dr Kairo said Jhpiego officials in Kenya did not investigate the complaint.
The court heard that subsequently, she was deliberately excluded from field work activities and openly reprimanded when she asked why she was not included.
Dr Kairo said that following numerous complaints in 2018 against the Jhpiego official, a new organisation chart was deliberately developed in order to sack her alongside other dissenting female workers in the guise of redundancy.
For its part, Jhpiego said that in 2018, its donor raised concerns about costs and particularly staffing in the East African region, prompting changes and a declaration of a redundancy in the position of senior programme delivery adviser.
Following the changes, the positions of county managers or coordinators were created in line with feedback received from project donors.
On November 2, 2018, Jhpiego said, it notified Dr Kairo and another employee of the changes in the project structure and the decision to declare the senior programme delivery adviser position redundant before giving them a month’s notice.
The process adhered to Section 40 of the Employment Act and other applicable laws, Jhpiego said, and that Dr Kairo was paid all her dues and issued with a certificate of service.
It rejected her claims that she was sexually harassed and bullied by its official, adding that no sexual harassment complaints were received in its human resources office between the time Dr Kairo was hired and August 2018.
Jhpiego told the court that she filed the complaint against the officer more than a year after the alleged sexual harassment took place.