A commentary on Mark Ngugi Mwaura V. G4S Kenya Limited- ELRC 232 OF 2021

In recent years, workplace relationships and the potential legal consequences surrounding them have gained increasing attention. This focus is exemplified by the case of Mark Ngugi Mwaura v. G4S Kenya Limited, which sheds light on how employers and employees alike must navigate the tricky waters of workplace romance, allegations of misconduct, and dismissal. Below is a breakdown of the background to the case, the employer’s defense, the court’s ruling, and important lessons employees can draw from it.

BACKGROUND OF THE ISSUE

The case of Mark Ngugi Mwaura v. G4S Kenya Limited highlights critical legal and ethical issues surrounding workplace relationships and termination. Mwaura, who worked at G4S for over 20 years, was dismissed on December 22, 2020, for allegedly engaging in a sexual relationship with his subordinate, Anne Mukami, and improperly influencing her transfer to a better-paying position at Coca Cola Upper Hill. Mukami had claimed that Mwaura fathered her child and influenced her transfer due to their personal relationship. A DNA test disproved the paternity claim, and Mukami herself was dismissed for giving false information.

Despite this, G4S terminated Mwaura, accusing him of breaching their Sexual Harassment Policy by engaging in a romantic relationship with a subordinate. Mwaura denied influencing Mukami’s transfer, arguing that it was handled by her direct manager.

EMPLOYER’S DEFENSE

G4S defended the termination, claiming it followed due process. They cited Mwaura’s breach of their Sexual Harassment Policy, which prohibits relationships between supervisors and subordinates. They argued that Mwaura’s relationship with Mukami, along with his role in approving her transfer, constituted a conflict of interest and sexual harassment.

THE COURT’S DECISION

The court, presided over by Justice James Rika, found the dismissal of Mwaura to be unfair and unlawful. The decision rested on several key findings:

1. Consensual Relationship, Not Sexual Harassment: The court ruled that while there was evidence of a consensual relationship between Mwaura and Mukami, there was no convincing evidence that this relationship amounted to sexual harassment. The court stated that not every romantic or sexual relationship at the workplace qualifies as sexual harassment unless there is clear evidence of coercion or a hostile work environment.
2. Failure to Prove Misconduct: The court found that G4S failed to prove that Mwaura’s actions violated the company’s Sexual Harassment Policy. The evidence presented suggested that Mukami willingly entered into a relationship with Mwaura and did not perceive it as coercive or unwelcome.
3. The Transfer Issue: The court also questioned the company’s argument regarding Mukami’s transfer. Testimony from G4S employees indicated that Mukami’s transfer was handled by her Customer Service Manager, not Mwaura, and that her selection for the Coca Cola role was based on her competence rather than any improper influence by Mwaura.
4. Violation of Privacy Rights: The court further ruled that the company’s Sexual Harassment Policy, which prohibits any romantic relationships between supervisors and subordinates, was unconstitutional. It violated the employees’ right to privacy and dignity under the Kenyan Constitution. The judge noted that romantic relationships in the workplace are inevitable and should not automatically be grounds for termination unless there is clear evidence of conflict of interest or misconduct.

The court ordered G4S to pay Mwaura Kshs. 3,244,800, equivalent to 12 months’ salary, as compensation for unfair termination. Additionally, the court directed G4S to issue Mwaura a Certificate of Service.

LESSONS FOR EMPLOYEES

1. Understand Workplace Policies: Employees must be aware of company policies on workplace relationships and conflicts of interest.
2. Maintain Professional Boundaries: Even in consensual relationships, ensure professional duties are not compromised.
3. Right to Privacy: Employees have constitutional rights to privacy and dignity in their personal relationships, even at work.
4. Seek Legal Recourse: If unfairly dismissed, employees can seek justice and compensation through legal channels.

This case underscores the balance between workplace policies and employee rights, emphasizing that relationships, when consensual, should not automatically lead to termination unless clear misconduct is proven.

Article written by Stella Muraguri- Managing Partner at MMW Advocates LLP W: www.mmw.legal E: info@mmw.legal