Court backs bid to sack worker over colleagues’ secret video sent to CEO

He contended that he was compelled to record the colleagues after the CEO demanded that he presents evidence to support his grievances against the senior managers or else he would face disciplinary action.

The court heard that after sharing the evidence with the CEO, she asked him to resign because of his deteriorating relationship with his supervisor, but he declined.

Upon being sacked in August 2023 for misconduct, he sued seeking a declaration that his services were unfairly and unlawfully terminated. He sought a compensation of Sh1.2 million.

The claimant, who was a community enterprise officer at the NGO, also wanted the court to find that the organisation violated his right to privacy as protected under the Constitution.

However, Justice Onesmus Makau dismissed the claim after finding that the process of termination was fair and that the organisation had valid reasons to terminate the employment.

"The claimant prayed for a declaration that the respondent (Lion Landscapes) violated his right to privacy contrary to Article 31 of the Constitution, but upon considering the evidence on record, I find that it is the claimant who violated other employees’ right to privacy by recording them without their consent," said Justice Makau.

Related to the claimant's confidential letters being shared and read to others, the court found that the claimant did not prove that such communication was privileged information that could not be shared by the employer.

The court found that the organisation had proved that it had two valid reasons for dismissing the claimant from service, namely, posting on the social media information related to his work without an accompanying disclaimer, and recording his colleagues in the office without their consent.

"I have considered the foregoing controversy, and I find no merit in the claimant’s demands. An employee in a small organization has limited rights when it comes to going through the disciplinary process. He has to appear before the same employer who mostly wears the hats of the accuser and the judge at the same time," said Justice Makau.

Additionally, the court found that during the disciplinary hearing, the charges were read to the claimant and he made his responses.

Mr Kanai had contended that he did the recording after the CEO demanded evidence. He contended that it was confidential information to the CEO and the Operations Manager, and there was no complaint from the recorded staff.

He contended that the respondent violated its staff handbook by failing to protect him as a whistleblower.

He stated that his right to privacy was violated by the organisation when he shared confidential information with a supervisor (Operational Manager), Glen Behr, who further shared it with his wife, Michelle Behr (HR Manager), who in turn released it to other employees. As a result, he said a toxic work environment was created for him.

In his defence, the claimant alleged that the composition of the disciplinary panels that heard his case in the first instance and on appeal was not impartial, as in both levels, there were spouses. Besides, the CEO who sat on the appeal was the author of the show cause letter.
He contended that he requested and was promised that his case would be heard by an external HR Consultant.

However, the organisation's witness, Gabriel Nyausi, stated that the office had four or five staff members, and there was no other person to conduct the disciplinary hearing. He further said that even the chairperson of the disciplinary committee was based in Tanzania, and the hearing was done virtually.

→ [email protected]