Manager's Termination for Inappropriate Comments and Unwelcome Touching Upheld by the Employment Court
James WaNjeri - Employment Lawyer
What is deemed to be unacceptable behaviour between colleagues that crosses the red line?
Businesses regularly have to determine what represents their values and what doesn’t. When it comes to sexual harassment, the law sets a clear expectation. A workplace should be safe from anything that creates a hostile work environment. In addition, the workspace must be a safe space for everyone. Even between employees, there is an obligation to provide a certain quality of safety to each other in the workspace.
When it comes to sexual harassment, the Employment Act ensures that all conduct is viewed through a certain lens or subjected to a test to determine if the conduct complained of is behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee's employment, job performance, or job satisfaction. This means that certain behaviors must be examined whether they satisfy that criterion. It is not all conduct that will be considered sexual harassment and the nature of the interaction between the complainant and the aggressor must form part of the context when considering the case.
The pat on the butt is a popular trend associated with sportsmen, particularly in Major League Baseball, but should it be allowed between employees in the workplace?
Justice CN Baari of the Employment Court in the case of Kimaile v Co-operative Bank Kenya Limited [2025] KEELRC 1072 (KLR) dealt with the question of what amounts to improper conduct in the workplace between employees.
The Claimant Employee had been employed by the bank since the year 2007 and in June 2015, he was promoted and to work as an Operations Manager. His actions on the 2nd and 4th April were the beginning of his woes with his employer.
According to him, on 2nd April, on a Saturday, it was his duty as the operations manager to check tellers' cash at the end of the day to ensure the system’s balances matched with the physical cash. After a hard day's work, he cracked jokes with other colleagues, including one MN as he checked the cash, and stated that he remembers patting the back of MN as he checked her cash and that when he confirmed that her cash was okay, they locked the box and she left the office.
On Monday, 4th April, after checking the cash of another colleague named WO, she requested him to open the man trap door for her to leave, and as they were conversing, he jokingly told her that she really needed to leave to go and nurse her young baby of 3 months, and jokingly told her to hurry up as she appeared not to have expressed enough milk for her. He testified that on her way home, W sent him an sms stating that his words were not friendly and that he said sorry for hurting her unknowingly when he joked earlier. According to him, he understood that the issue was conclusively solved since W and he had worked closely together and that he had been supportive and respectful during her pregnancy.
About a week later, he was summoned by the HR who had received complaints from the two members of staff alleging sexual harassment by him.
Questioned about the accusation of sexual harassment against MN and WO, he read mischief because the two emails sent to the Human Resource Manager were sent on the same day at almost the same time. In his defense, he stated that his no-nonsense nature during working hours probably made the two ladies angry, therefore prompting them to send such emails to the Human Resource Manager. In his defense during the meeting with Human Resources, he highlighted that a survey in the month of March rated their customer service at the branch where he served as poor, and for that reason, he conducted a meeting during the week of 4th April, and stated that he would deal strictly if he found a teller failing to observe the bank's charter on customer service. It was his case that the two tellers colluded to brand him as an irresponsible team leader which was not true, as he had worked elsewhere before with staff of both genders, and had never had an issue of this magnitude.
In his response to the show cause letter to the Human Resource Manager, he indicated that he did not intend to hurt or disappoint anyone. He further stated that he wrote emails to the two complainants further indicating that he did not intend to hurt them and that he was only joking, and that the jokes were taken too far.
Employer’s Response
According to the Bank, the employee was taken through a disciplinary process and admitted having committed the offense to one staff and denied allegations in respect of the other staff. It reviewed the CCTV footage and confirmed that the allegations made by both staff were indeed legitimate, and upon meeting the Operations Manager on 12th April, it confirmed that he contravened the provisions of the Bank's Sexual Harassment Policy and Staff Manual, casting doubt on his character as a Bank employee.
In addition, they interviewed the affected staff and witnesses and instituted a disciplinary process by issuing a Show Cause Letter to him and he responded to the Show Cause Letter admitting to the allegations set out.
He was then invited for a disciplinary hearing meeting scheduled for 3rd May 2016. He attended the disciplinary hearing meeting unaccompanied, despite having been accorded the opportunity to invite a fellow colleague and responded to the charges. He was then issued with copies of the disciplinary hearing minutes, which he confirmed by signing.
The Manager was terminated by way of a termination letter dated 25th May, in which he was allowed to appeal the decision. On the same date of his termination, he tendered a resignation letter and later on 18th July sent a request to be allowed to resign. He also lodged an appeal on 30th May 2016, which was declined as he did not provide any new information to warrant a review of the decision, and further, because the Bank had followed due process and fair procedure while terminating the Claimant's employment.
Court’s Determination
The Court began by noting that in his response to the show cause, he admitted having tapped one of the complainants out of excitement for having ended the day without hitches but denied harassing her. He further admitted having jokingly used unpleasant words against the second complainant and that he did apologize to her.
Was there sexual harassment?
In the Bank’s Sexual Harassment Policy, sexual harassment was defined as;
“unwelcome conduct of a sexual nature that is sufficiently persistent or offensive to unreasonably interfere with an employee’s job performance or create an intimidating, hostile or offensive working environment." Additionally,
“ sexual harassment does not refer to the normal conversational ‘give and take’ that frequently occurs in the work environment, as long as both parties involved and affected find such conduct acceptable."
According to the Manager, his conduct did not fit this definition. In respect of the first incident, where he patted MN on the back, there was no indication at the time that the gesture was unwelcome, that MN did not express any discomfort, and that there was no evidence that the act created a hostile or offensive environment. The gesture was simply a friendly interaction, which is commonplace in a social work environment.
For the second complainant, named WO, she requested him to open the man trap door for her to leave, and as they were conversing, he jokingly told her that she really needed to leave to go and nurse her young baby of 3 months, and jokingly told her to hurry up as she appeared not to have expressed enough milk for her.
CCTV footage produced in Court showed the Manager touching the complainant named MN from her neck down to her butt. The Claimant also admitted that using unpleasant words against WO on 4th April, and only stating that he apologized to her.
Sexual harassment can be verbal, physical or both at the same time. When deciding what amounts to harassment, the words or conduct complained of must be unwelcome to the victim, and it is for her or him to decide what is acceptable and offensive. Further, 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 Manager was the complainant’s superior in the workplace and he had some level of control over how they discharged their duty. Based on his own admission that his conduct was unwelcomed by the complainants, amounting to a violation of the Sexual Harassment Policy, the Court found that the Bank had fair and justified reasons to terminate his employment.
Based on this, the Court dismissed his claim for unfair termination.
Conclusion
Employees must be careful in how they interact with each other. I am reminded of that Sunday school song, oh be careful little tongue what you say. This is because what one would find to be funny can easily be offensive to the recipient of the “joke”. It is important to joke with those who understand and accept your jokes. In this case, the statement directed at WO was offensive because the manager was remarking about her body and the fact that she needed to go and express milk. This “joke” was clearly aimed at her breasts and it made her uncomfortable. For WN, the manager patted her back all the way down to her backside. His defence was that he was excited and celebrating after the day ended without hitches. Perhaps this conduct would have been acceptable for players in the MLS but it is highly offensive to touch someone without their consent in the workplace context.
Indeed, it is acknowledged that in the workplace, some employees have extended certain liberties to each other where jokes and touching are allowed. In such a case, a complaint of sexual harassment would not suffice since the aggressor would simply show that this was part of their normal day-to-day interactions.
So to answer that question at the start of this article, it’s when the words or conduct are unwelcome to the victim.
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The contents of this newsletter do not constitute legal advice and are provided for general information purposes only.
James Njeri and Company Advocates
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Ngong Lane, off Ngong Road
Nairobi, Kenya
Email: legal@jnadvocates.com