'I’m being punished for refusing dirty tender deal'
Ms Miriam Thiriku, who is locked in a legal fight with her former employer Bomas of Kenya after she allegedly cooperated with EACC officers in 2012, which saw her hounded out of the organization.
What you need to know:
- Former Bomas of Kenya employee got into trouble after she resigned from the tender committee due to the many malpractices that were being perpetuated.
Death threats. A decade-long court battle. An employer who won’t honour a court award and has also refused to release her retirement.
This was not the life Miriam Thiriku envisioned when, on July 5, 2007, she was hired as a marketing officer, the senior most position in the department at the Bomas of Kenya. Her salary was Sh27,486 per month.
All went well, and as a pointer to her diligence, she was given an extra role, which involved leading a panel that awarded lucrative tenders. Sometime in 2013, her troubles began.
She says her tribulations have to do with her decision to resign as chairperson of the state corporation’s procurement committee since she was uncomfortable with its underhand dealings.
But shortly thereafter, she was sacked by her employer – she couldn’t leave the committee and keep her job.
The subsequent court battles have lifted the lid on the pain she has endured over the years.
Ms Thiriku recounted in court the corrupt dealings that forced her to quit the procurement committee.
“Decisions would be taken without her being involved and she would be required to give approval as though she had been involved. Some staff members had also formed companies and were supplying goods to the organisation without disclosing their interest. There was also the problem of single sourcing of commodities.
“The claimant raised all these issues. The frustration led to her eventual resignation from that committee and subsequent deterioration of her relationship with the General Manager,” read court papers.
Employment and Labour Relations Court Judge Hellen Wasilwa was told Ms Thiriku endured more frustrations and false complaints from at least three fellow employees as well as threats that she reported to the police and other administrative bodies.
The judge observed: “Some threats were made by text messages to her phone and she has kept one such message to date which read as follows: “If u think u r so clever, ensure u don’t cross the line once and 4ever!! Ua days are numbered en I will ensure u see what u have never seen. U will really regret!”
The judge traced the genesis for her tribulations thus: “Sometime in 2012, Ms Thiriku had cooperated with an anti-corruption investigation, which did not auger well with the respondent’s management.”
On July 19, 2017, Justice Wasilwa found that Bomas of Kenya treated Ms Thiriku unconstitutionally through unfair labour practices and awarded her Sh500,000 in damages.
But Ms Thiriku’s triumph after a court battle that lasted almost a decade risks turning into a hollow victory as her former employer continues to withhold the damages.
Although the Court of Appeal in June this year dismissed the case filed by Bomas of Kenya seeking to overturn the 2017 judgment, she is yet to receive a cent from her former employer.
Her dues include retirement benefits, other benefits and salary increments that she was entitled to for the years her pay was stagnant as that of other staff members was increased, and salary for the two years she was locked out of employment up to retirement between September 2018 and August 2020.
In addition, the employer is required to pay for years worked and not included, unpaid contributions to the National Social Security Fund, her terminal benefits as stipulated in law, her certificate of service, annual leave and other costs, including unrefunded amounts she used in pursuing her studies and trips while still a senior staff at Bomas totalling Sh551,140.
“Bomas has gone silent since the ruling was made on June 24, 2022. Why they are not complying with the court's orders boggles my mind,” a frustrated Ms Thiriku said.
Bomas of Kenya appealed the 2017 ruling in the hope of overturning Ms Thiriku’s win. However, the Court of Appeal threw out the case and confirmed the previous ruling issued by Justice Wasilwa, which barred the organisation from taking disciplinary action against her.
In its appeal, Bomas complained that the judge had considered extraneous circumstances and facts, and disregarded the evidence adduced in court.
However, the Court of Appeal judges Wanjiru Karanja, Fatuma Sichale and Mbogholi Msagha upheld Justice Wasilwa’s ruling and further clarified that Ms Thiriku had never been sacked and should be paid all her dues.
Ms Thiriku told the Nation that she has had no peace since 2013, when she first filed the case against her employer citing unfair administrative action, harassment, and unfair treatment arising from her resignation from chairing the procurement committee.
She did not get any salary increase for the next five years. Then in August 2018, she was denied access to her office. She was 58 at the time and spent the next two productive years unemployed, constantly in court fighting in her case. Although the court did not award her the Sh5 million she had asked for, she said she is content with the ruling and hopes her former employer acts on the judgment soon.
When Ms Thiriku attained the retirement age of 60 in 2020, Bomas refused to fill her pension scheme forms, thus denying her access to her retirement benefits. The company cited the then ongoing case at the Court of Appeal.
She said she has had to rely on family members since she was not only jobless but did not have her pension to cushion her.
Under the leadership of the then General Manager Quresh A. Hussein, Ms Thiriku was issued with a show-cause letter accusing her of being absent from duty for three days (between September 17 and 19) without permission and threatened her with summary dismissal as her job was advertised in the local dailies.
She said she had explained that she had an emergency as her husband had been admitted to hospital. She was also detained at the Kilimani Police Station on the afternoon of September 17 and was in court on September 18. She tried to call the general and finance managers, but they did not pick her calls, she told the court.
Instead, she received the show-cause letter for absence from duty and misconduct, and was expected to provide an explanation within seven days instead of the 14 mandated in the Bomas of Kenya human resource manual.
She also testified that the human resource office did not give her the opportunity to explain verbally, but she sent her written explanation to the general manager after being summoned to appear before the advisory committee on October 14, 2013.
She also informed the general manager that she did not believe the committee would give her a fair hearing as it was composed of the colleagues who had been harassing her.
On that day she started her court battle, filing for orders to stop the disciplinary proceedings. However, despite obtaining the orders on October 16, Bomas proceeded to serve her with a termination letter on October 29.
On her advocate’s advice, Ms Thiriku declined service of the letter and resumed her duties until she received a letter on December 1, 2014 accusing her of insubordination because of attending the Kenya Week in Paris celebrations.
The general manager had declined to clear her to travel to Paris, but she obtained permission from the principal secretary in the Tourism Ministry, who told her he had discussed the issue with her boss and there would be no problem if she travelled.
She also disputed the charge of insubordination explaining the general manager was aware of her involvement in the event’s planning committee as head of marketing.
In his submissions to the court, Bomas Human Resource Officer Okidiang’ Jimmy John admitted that the show-cause letter was unfair in giving her seven days to respond instead of 14. He also noted that Ms Thiriku was not reprimanded verbally and that he, and not the general manager, wrote her the show-cause letter.
No record of her response to the charges in the minutes of the meeting was available and the letter sending her on compulsory leave did not spell out the terms of the leave and the details of the pending ruling.
In its judgment, the Court of Appeal agreed with Justice Wasilwa that, according to the Bomas HR manual, the period of absence from duty that would be regarded as absconding was 10 days, yet the respondent was only absent for three days.
Bomas was also faulted for giving Ms Thiriku seven days to respond to the show cause letter instead of the legally allowed 14, and further, the manual expected the letter to be written by the head of department and where he or she is not satisfied with the employee’s explanation, a reprimand letter to the employee with a copy to the general manager would follow.
“The committee was at the time chaired by the finance manager, yet the manual stated that the committee shall be chaired by the general manager. As such, this procedure was not followed,” the court noted.
It also faulted the appellant’s action of advertising a position for a marketing and product development manager with duties overlapping those of the respondent.
The court determined that the respondent was treated unfairly and unjustifiably. There was no clear basis for her claim of discrimination, but the treatment amounted to unfair labour practices. It issued a permanent injunction against Bomas from continuing with any disciplinary action against Ms Thiriku on issues prosecuted in the petition.
The court also declared that the agency’s actions were in breach of her constitutional rights.
“In view of the above, we have come to the conclusion that the appeal is lacking in merit and therefore dismissed with costs,” the three-judge bench stated.
However, more than 100 days later, the award is yet to be honoured.
