Court upholds firing of lecturer for misconduct

The Employment and Labour Relations Court in Nairobi has dismissed a lawsuit filed by a former lecturer against a public university, ruling that the termination of his employment over allegations of inappropriate conduct with a student was both lawful and fair.

In his judgment, Justice Mathews Nduma held that the university had valid reasons to dismiss the lecturer after establishing, through a disciplinary process, that he had engaged in an inappropriate relationship with a student, contrary to the institution’s code of ethics and conduct.

The claimant, who had been employed as a lecturer since 2013, was suspended in December 2019 after allegations emerged that he had engaged in sexual misconduct with a female student.

The university accused him of breaching the staff code of conduct, the Leadership and Integrity Act, and other applicable laws governing the behavior of academic staff.

A disciplinary hearing was convened in March 2020, where the allegations of non-consensual sexual relations with a student were tabled. The lecturer denied the claims, insisting they were fabricated and malicious.

“By the time the suit was filed, the Claimant had attended a disciplinary hearing and was found guilty, and his employment was terminated between the period 3/3/2020 and 19/2/2021, the Claimant was on suspension on half pay,” the judgement read.

In his suit, filed in October 2021, the claimant argued that his dismissal was unfair and unlawful.

He sought reinstatement to his previous position or compensation of Sh22 million for loss of employment, damage to his reputation, and alleged unfair labour practices.

He further argued that the disciplinary process was flawed, citing the lengthy suspension, more than 90 days, in contravention of the university’s policies. He claimed he was not allowed to cross-examine his accuser.

The claimant also questioned why no formal complaint had been made to the police regarding the allegations, which he believed weakened the case against him.

The university, however, defended its decision, maintaining that it had followed due process.

It attributed delays in the disciplinary process to the COVID-19 pandemic, which had forced the institution to close for almost a year.

The university asserted that the lecturer was given ample opportunity to defend himself, both during the disciplinary hearings and on appeal, but failed to provide a satisfactory counter to the evidence.

It emphasised that its actions were in line with employment law and internal policies, given the seriousness of the allegations.

The court heard detailed testimony from the student involved, who claimed that the lecturer manipulated her into visiting his home on multiple occasions, during which he coerced her into sexual activity.

She said she felt unable to resist due to fear of academic repercussions and eventually reported the matter to the university’s counselling office.

“The claimant’s conduct subjected me to emotional and psychological trauma, and I could not focus on my studies,” she said in her statement.

Her account was supported by testimonies from university officials who confirmed that investigations were conducted and disciplinary action was deemed necessary.

During cross-examination, the claimant maintained that he had only been assisting the student with her studies and financial support for medication.

He denied any misconduct, describing the allegations as a deliberate attempt to damage his reputation and end his career.

His counsel argued that the absence of direct evidence of non-consensual sexual activity, coupled with the lack of a formal police complaint, should have led to the dismissal of the charges.

Justice Nduma found that the university had proven its case on a balance of probabilities.

Citing Section 43 of the Employment Act, the judge noted that an employer must demonstrate valid reasons for termination, and in this instance, the evidence presented met the required legal standard.

“The respondent has by preponderance of evidence proved on a balance of probability that the claimant was engaged in an inappropriate relationship with a student in violation of the code of ethics for the university,” Justice Nduma stated.

The court also dismissed the argument that delays in the disciplinary process invalidated the dismissal.

Justice Nduma observed that the COVID-19 pandemic had significantly disrupted normal operations, making the delay justifiable.

The court further noted that the lecturer was afforded a fair hearing, including representation by union officials and a lawyer during disciplinary sessions, as well as the opportunity to appeal the decision.

"Accordingly, the termination of the employment of the Claimant was for a valid reason(s) established following a fair procedure as demonstrated by the witnesses for the Respondent. The Claimant was charged and afforded an opportunity to explain himself, but failed to exonerate himself from the charges of misconduct framed against him,” the judge said.

In rejecting the claims for reinstatement and compensation, the court referenced established precedents, which underline the need for both substantive justification and procedural fairness in termination cases.

Justice Nduma concluded that both requirements were satisfied by the university.

“The termination of the employment of the claimant was for valid reasons and followed a fair procedure,” he ruled.

As a result, the suit was dismissed with costs awarded to the university.