- She told the court that her immediate boss harassed her both physically with unwanted touches and emotionally.
- She said this prompted her to tender her resignation via email in May 2019, which was accepted despite her afterthought to withdraw it.
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Kenya Commercial Bank (KCB) has been ordered to pay Sh1.7 million to an ex-employee for constructive dismissal following complaints of sexual harassment.
Constructive dismissal happens when an employee resigns because the employer breached the employment contract.
At the heart of the case is Evelyne Cherotich, who through her lawyer Paul Macharia, moved to the Employment and Labour Relations Court accusing the bank of mishandling the complaints and unlawful termination.
She told the court that her immediate boss harassed her both physically with unwanted touches and emotionally.
She said this prompted her to tender her resignation via email in May 2019, which was accepted despite her afterthought to withdraw it.
She asked the court for a declaration that the termination was unlawful, unjustified and unfair, and sought compensation.
This, she asked either in the form of reinstatement or a month's pay in place of notice, being Sh133,00 or a year's salary in compensation, being Sh1,596,000.
She further sought for Sh665,000 as gratuity at 15 days' salary for every year of service.
Her woes, she said, began when her alleged harasser told her to shift her workstation which she declined because she had worked that station the previous week.
She said the instructions were counter to the rotational practice at the bank.
The bank however opposed the claim of unlawful termination saying Cherotich had voluntarily resigned.
It said by the time she sent an email seeking to rescind her resignation, the latter had already been accepted.
It also denied the claims of sexual harassment and intimidation, saying it was a diversionary plot to avoid responsibility for her insubordinate actions.
The bank said in April 2019, Cherotich had received instructions from the Acting Manager, Service Quality and Compliance (MSQC) on her duties, but she ignored the same.
She was then served with a show cause letter by her immediate boss to which she responded by raising the sexual harassment claims.
The court heard that she was then asked to support her claims but asked for more time.
The bank said a letter was sent to Cherotich on May 13, 2019, advising her to forward the documents supporting the allegations by the close of day on May 22, 2019.
On May 20, 2019, she resigned and the same was accepted a day later.
In a counterclaim, KCB asked for Sh133,000, being a month's salary as Cherotich had not given her resignation notice.
The man accused of harassing her told the court that his reputation had been injured and sought damages with an order to public an apology to two newspapers of nationwide circulation.
Upon determination of the case, ELRC Judge Linnet Ndolo found that there was no substantive response from the bank following Cherotich's complaints of harassment.
The judge noted that the bank should have initiated objective investigations into the allegations as they are serious.
Delivering the verdict on Thursday, Justice Ndolo said constructive dismissal had been established.
"I have no difficulty in concluding that her resignation was not voluntary. What is more even after she changed her mind and sought to recall the resignation, the bank shut that for as well," she said.
"I find and hold that the claimant (Cherotich) proved a case of constructive dismissal as defined by law."
Owing to the above, the counterclaims filed were disallowed.
On the orders sought by Cherotich, the court observed that reinstatement was not an appropriate remedy, especially since time had lapsed since post-separation.
The judge however allowed the years' salary compensation sought.
She noted that she had made the decision guided by Cherotich's length of service and the bank's mishandling of her case by failing to investigate the allegations.
The former banker was also awarded a month's pay in lieu of notice.
The claim for gratuity was however disallowed as it was not supported by any evidence.
In total, the court awarded Cherotich Sh1,729,000; Sh1,596,000 in a year's salary and Sh1333,000 in a month's salary.