Why Court awarded Safaricom former employee KSh 14.6M for unfair sacking and lets her keep KSh 46.2M bonuses.

SAFARICOM

Telecommunications company, Safaricom, has been ordered to pay its former employee Ksh60.7 million for wrongful termination of her employment.

The telco giant was sued by its former Customer Care Director, Pauline Wangeci Warui, after she was wrongfully dismissed by the company over claims that she was doctoring figures to show that her department was meeting set targets.

Warui, whose contract at Safaricom was terminated on March 20, 2015, said the company’s claims were false, and that, she had never been summoned for disciplinary action since joining the firm on December 5, 2007.

In the seven years that she worked at Safaricom, Warui rose through the ranks from Chief Customer Care officer, to Director Executive Head of Customer Care and eventually the Director of Customer Care.

The complainant, in her suit, told the Employment and Labour Relations Judge, Maureen Onyango, that her performance ratings often ranged between “very good” and “excellent”, thus making her eligible for bonuses.

Recounting the day in which her imminent dismissal was announced to her, Warui told the court that she was attending a two-week business program at Strathmore University on March 20, 2015, when the then-CEO, Bob Collymore, who is now deceased, called and informed her she was needed urgently at work.

According to Warui, Safaricom sponsored her training.

She said she pleaded to be allowed to complete the training, but her request was declined, instead of being directed to immediately drive to Safaricom’s headquarters in Westlands, Nairobi.

Upon arriving at her workplace, she was told to see the CEO.

She said she met Collymore and the Human Resources Director, who told her they had decided to give her a mutual separation agreement.

She was, thereafter, taken to the boardroom, to meet the directors of legal services and corporate communications. It was at the boardroom, where she was informed that Safaricom wanted to cut ties with her, formally.

Warui told the court that she requested the CEO, directors of legal services, corporate communications and human resources to be allowed to consult with her family before signing the agreement.

The ex-customer care boss said she was, thereafter, escorted out of the premises, without being allowed to collect her belongings.

She said the CEO, a day or two letter, wrote a memo to all employees announcing leadership changes at the top, including in Warui’s docket.

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Warui said Collymore, thereafter, sent out a press statement that claimed she had stepped down voluntarily to pursue personal business interests.

After four days (March 24, 2015), Warui returned to Safaricom, where she signed the mutual separation agreement. She said she signed the agreement under duress.

In her suit against Safaricom PLC filed on March 18, 2016, Warui said the press statement by the then-CEO claiming she voluntarily resigned from her position was founded on falsehood.

Warui further argued that she hadn’t been given time to clear her desk.

The former customer care chief further said she was forced to sign the separation agreement lest she face summary dismissal.

And, finally, Warui said her reputation was ruined, hence reducing her chances of landing equally-high posting after Safaricom claimed that she had ballooned customer care’s received calls and sent-out text records.

Warui argued that her dismissal by Safaricom breached Article 41 of the Kenyan Constitution, which gives every employed person in the country a right to fair labour practice.

Warui further said her ejection contravened Article 47 of the Constitution that gives an employee the right to procedurally fair administrative action.

The complainant also cited Sections 45 and 46 of the Employment Act that frowns upon unfair dismissal of employees.

In her suit, Warui argued that had she not been wrongfully shown the door, probably, she could have ended up retiring from formal employment at Safaricom at the age of 60, and, therefore, could have earned Ksh442, 556, 900 in remuneration based on her monthly pay at the time she was being dismissed.

In the suit, Warui said she was seeking damages for wrongful termination equivalent to 12 months’ salary based on gross pay at the time, totaling to Ksh29, 504, 460.

She also wanted the court to compel Safaricom to pay her bonuses for the year ending March 30, 2015. According to the complainant, that figure stood at Ksh8, 836, 803.

On May 10, 2016, Safaricom responded to Warui’s lawsuit, and filed a counterclaim on June 14, 2017.

In their counterclaim, Safaricom said Warui had “for a period of time systemically doctored performance reports with the complainant’s knowledge and connivance to show higher performance so as to meet targets”.

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The telecommunications company said they had received a tip-off from a whistleblower in regard to Warui’s alleged conduct, and later launched independent investigations which “established the wrongdoings of Warui”.

Safaricom said an auditor hired to investigate the allegations against Warui had relied on interviews with staff, reports presented by Warui and raw data from their system to ascertain that the complainant engaged in the said-deceit.

“Data from call centre was altered to reflect better performance whereas the actual performance was below target,” claimed Safaricom.

Countering Warui’s allegations — that she wasn’t given a chance for fair hearing — Safaricom said it gave the complainant the opportunity to respond, but “she decided to resign instead of facing the disciplinary committee”.

The company also said that Warui — based on the mutual separation agreement — had given up the chance to seek legal redress against Safaricom.

According to the firm, if Warui moved to court after signing the agreement, then she would be required to refund all the monies she was paid following her exit from Safaricom.

Following her dismissal, Safaricom Warui was paid Ksh46, 224, 890 as an exit package.

The 46.2 million was awarded as follows: three months’ salary in lieu of notice (Ksh4, 797, 225), three months’ car allowance (Ksh660, 000), 15 days’ salary for every complete year worked (Ksh6, 366, 763), prorated bonus pay (Ksh4, 838, 757), leave days not taken (Ksh33, 743), prorated employee shares up to March 20, 2015 (Ksh12, 059, 722) and ex-gratia payment — a payment made by an employer where there is no contractual obligation to do so — (Ksh16, 668, 680).

While issuing her ruling recently in the Cause No. 442 of 2016 pitting Pauline Wangeci Warui against Safaricom PLC, Justice Maureen Onyango said based on submissions by both parties, she concluded that Warui was wrongfully dismissed, saying proper procedure as per Section 41 of the Employment Act wasn’t followed.

The procedure for fair termination as per the Act outlines three steps, to be followed before axing an employee from work, which include: 1) Inform the employee why you are contemplating cutting ties with him or her; 2) Give the employee an opportunity to respond in presence of a union officer or fellow employee; 3) The employee can, thereafter, make a decision on whether to terminate the employee’s contract, or not.

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The judge observed that in the case of Warui, the above procedure was not followed by Safaricom.

Justice Onyango said Warui was — on March 20, 2015 — called to a meeting, informed that her employment contract was terminated, given a mutual separation agreement and ordered to sign it, and she was, thereafter, replaced before she appended her signature against the termination agreement.

The judge termed Warui’s termination as “not humane at all”, and that “she had no clue that it was coming”, contrary to Section 41 of the Employment Act.

Justice Onyango further stated that Safaricom did not prove that Warui had been accused of engaging in misconduct.

As a result, the judge ordered Safaricom to pay Warui eight months’ salary (Ksh14, 552, 600) as damages for unfair termination of her employment.

The judge threw out Warui’s demand for Ksh8.8 million in bonuses, saying the mutual separation agreement showed she had been paid bonuses amounting to Ksh4.8 million at the time of her exit, and, therefore, Justice Onyango failed to understand why the complainant still wanted Ksh8.8 million.

“This (Ksh8.8 million) is special damages that must be strictly proved. She (Warui) did not state how she had arrived at the figure claimed,” ruled the judge.

Safaricom’s claim that Warui ought to have refunded them the Ksh46.2 million they had paid her as exit package because she sought legal redress — contrary to the mutual separation agreement –, was also dismissed by the judge, who said “even in the absence of the said-agreement, Safaricom would have paid Warui the monies, anyway, because that is what the law stipulates.

“All the items [in the Ksh46.2 million payment] except the ex-gratia, are statutory or contractual, and the claimant would have been entitled to the same even assuming that there was no mutual separation agreement,” ruled Justice Maureen Onyango.

The judge further directed Safaricom to pay the costs Warui incurred during the legal process, including in submitting her claim and the counterclaim.

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