The Employment and Labour Relations Court has upheld the sacking of a lecturer accused of sexual harassment by inappropriately touching female students, hugging them suggestively, and using uncomfortable terms to address them, such as “darling” and “sweetheart.”
The court said that Oshwal College in Nairobi had a valid and fair reason for terminating the employment of Benard Nyamamba Mauti in May 2023 on grounds of gross misconduct.
After reviewing the students’ complaints, the court said, it was evident Mr Mauti’s conduct was inappropriate and amounted to sexual harassment, and his actions clearly breached the boundaries of the professional student–teacher relationship, expected of him.
“As a lecturer, the claimant was under a strict obligation at all times to maintain professionalism in all interactions with his students and to refrain from any verbal or physical behaviour of a sexual nature,” said the court.
Although the students described the lecturer as a good teacher, his conduct was unethical and inappropriate.
And while he allegedly referred to female students as “sweetheart” or “darling,” was overly touchy with them, hugged and whispered in their ears, it was claimed that he was notably harsh towards male students.
“In light of the foregoing, the Court finds no reason to doubt the credibility of the students’ statements outlining the allegations against the Claimant,” said the court.
Mr Mauti was employed by the college in 2010 as a lecturer under an open-ended contract of service and said that he performed his duties diligently throughout his employment.
He was fired on May 19, 2023, over allegations of sexual harassment, but he maintained that his termination was irregular, unlawful, unjustified, and in blatant violation of the Employment Act.
Mr Mauti wanted the court to issue a declaration that his sacking was wrongful and amounted to unfair and unlawful dismissal.
He also sought to be paid damages and compensation for breach of contract amounting to Sh22.7 million, being the wages for the remainder of the contract period from May 1, 2023, until retirement age of 60 years.
He testified that he was summoned to the principal’s office on April 26, 2023, in the presence of the Academic Registrar, where he was informed that he was under investigation based on student appraisal forms.
He said that, through threats and intimidation, the principal failed to fully disclose the nature of the investigation and did not allow him to view or examine the said appraisal forms, which allegedly contained claims of sexual harassment made against him.
A few days later, he said he was summoned to appear before a panel and informed that he was under investigation for sexual harassment allegations made by certain students.
Mr Mauti claimed that the panel, which he considered irregular and incompetent, interrogated him unlawfully without providing adequate or clear particulars of the allegations, including the identities of the complainants, the specific nature of the accusations, or any supporting evidence such as complainant statements, CCTV footage, or reports.
Despite this lack of disclosure, he answered the panel’s questions and categorically denied all allegations.
The lecturer said he granted only three days to respond to the show cause letter, yet he had not been furnished with full and detailed particulars of the allegations, including the names of the complainants, the specific allegations, and the evidence relied upon.
He maintained that the statements were fabricated and backdated to appear genuine after he had demanded them during his interrogation by the panel.
The college management defended the termination, saying the decision was conducted in accordance with the law, fair and lawful, and that he was in breach of the Employment Act and the college’s human resources manual.
The college said it first received a complaint regarding his conduct involving sexual harassment, specifically, an incident in which he kissed a student in the library.
Mr Mauti allegedly acknowledged his misconduct and, by a letter dated August 23, 2010, he tendered a written apology, undertaking that such behaviour would not recur.
About four years later, there was another complaint from a parent alleging that he had been sending inappropriate text messages to her daughter, which made the student uncomfortable.
Once again, he allegedly admitted to the conduct, apologised, and was cautioned regarding his behaviour and its potential consequences. There were more complaints from students, with one alleging that he had inappropriately touched her, solicited and received a gift from her, and made unwarranted phone calls to another student.
Again, he was reminded of the college’s duty to maintain a safe and respectful learning environment and was issued a final warning, cautioning that any further breach of the institution’s ethical or welfare standards would lead to immediate termination of his employment.
The court said the alleged behaviour of touching and hugging female students and addressing them with terms such as “darling” or “sweetheart” was wholly improper and constituted sexual harassment.
“As a learning institution, the Respondent bore a duty of care to its students to ensure that the learning environment remained safe, both physically and emotionally. This duty required the Respondent to investigate any allegations of sexual harassment and to take appropriate disciplinary measures if such allegations were substantiated,” said the court.
The court said it should also be appreciated that the college was not required to prove the allegations against the lecturer beyond a reasonable doubt.
