Sacked RSM auditors lose bid for discrimination and sexual harassment payout

Ms JNW had claimed that her termination was preceded by challenges of dealing with a top manager, who was advancing sexual harassment through "calls, sexual glances, requests for hugs and at the climax, a request to bear him a child and seductive comments".

For Ms AWG, a senior auditor, she claimed that her dismissal was based on her pregnancy status to avoid granting her paid maternal leave.

However, the Employment and Labour Relations court found that their termination was due to poor performance at work and there was no proof of the alleged discrimination or sexual harassment.

The court said the allegations by Ms JNW were "purely an afterthought" to implicate the manager.

"The court has considered the mixed grill circumstances of the termination of the claimants' respective contracts of service. It is found that on the one hand the unsatisfactory performance has been established to have existed as at termination," said Justice Byram Ongaya.

"By their own testimonies, they at all material times prior to the termination knew about the poor performance and areas needing their improvement but they had as well failed to improve".

The court stated that the company adopted a fair procedure and a fair reason in terminating the employment.

For Ms JNW, the court returned that in her oral evidence she confirmed that she had not produced any evidence to prove or support her claims on harassment including alleged phone messages.

"Upon Ms JNW being unable to explain the established unsatisfactory performance and in the face of the termination of contract upon the contractual clause on notice, she in a misconceived design, implicated the second respondent purportedly to show that the non-existent sexual harassment have triggered the termination," said the court.

The manager had in his defence told the court that the email referred to by Ms JNW in respect to the alleged harassment was self-generated and a fabrication to unfairly implicate him.

"The email was manufactured most likely in anticipation of the looming termination. She purports to rely on manufactured screenshot WhatsApp messages in circumstances that the second respondent issued no communication in that respect," said his advocates.

She was hired in March 2018 as Audit Senior 2 with a monthly salary of Sh190,000 and was fired in September 2020 for failing to deliver jobs as per agreed scope, integrity issues in charging time to clients, poor work quality, poor direction and execution of assignments and poor documentation and referencing of work done, among other allegations.

For Ms AGW, the court found that she offered no evidence to show that the termination was on account of her pregnancy.

"The allegation of discrimination on account of pregnancy is not established at all and the same will fail together with the claim for compensation in that regard," said the judge.

Denying the discrimination, the company urged that it had many female employees whose pregnancies are routinely celebrated as was done when Ms AGW gave birth to twins.

It pleaded that the salary increments which Ms AGW received were based on inflation and were awarded to all employees in her department for achieving the set financial target. The performing employees were promoted while underperformers, like her, only received the increment.

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