A Nairobi court has upheld the sacking of a Co-operative Bank manager who patted a female teller’s buttocks as a way of congratulating her for good performance.
The man claimed the incident was a friendly interaction and happened to have taken place at the close of the day’s transaction after the Co-operative Bank manager and the teller confirmed the cash balances were okay.
The man, describing himself as a friendly boss, admitted to slapping the woman due to excitement about ending the day without hitches.
Court papers show the operations manager had worked with the bank for nine years and was earning a gross salary of KSh 199,763 at the time of sacking.
Another female colleague, a new mother, also accused the man of uttering unpleasant remarks.
The two incidents are deemed to have constituted sexual harassment and misconduct.
Fired
The man moved to court after the Co-operative Bank laid him off in May 2016 over the two incidents.
This decision has now been endorsed by the Employment and Labour Relations Court, which dismissed the sacked man’s claims that he was unfairly terminated by the Cooperative Bank.
In a landmark jurisprudential ruling, Justice Christine Baari reasoned the question of what constitutes unwanted conduct is not what a court would or would not find offensive, but whether the individual victim has made it clear they find the conduct unacceptable.
“…The court proceeded to hold that the question as to what constitutes unwanted conduct is not what the court or tribunal would or would not find offensive, but whether the individual victim has made it clear that he or she finds the conduct unacceptable.”
“The Claimant acknowledged that his conduct was unwelcome by the complainants and which, therefore, constituted a breach of the express provisions of the Respondent’s Sexual Harassment Policy.”
It is also not lost on the court that the claimant was the complainants’ superior at the workplace and hence had some level of control over how they discharged their duty.” Read part of the judgement.
The court further determined the bank, having had a Sexual Harassment Policy in place, was justified in sacking the claimant.
The court further ruled the termination process was fair and lawful.
Court papers seen by GOTTA.NEWS show the man had prayed to the court to declare that he was illegally terminated.
He indicated his remarks were jokes and were not in any way meant to hurt the women.
Saturday duty
Documents filed in court show the man patted her colleague on the butt on Saturday, April 2, 2016.
He said that he remembered patting MN as he checked her cash and that when he confirmed that her cash was okay, they locked the box and she left the office.
Two days later, on April 4, in a separate incident, after checking the cash of another colleague, named WO, she requested him to open the main trapdoor for her to leave.
“…and that as they were conversing, he jokingly told her that she really needed to leave to go and nurse her young baby of 3 months and jokingly told her to hurry up, as she appeared not to have expressed enough milk for her.”
Meeting with HR
Despite apologising to WO, the matter was escalated to the bank’s human resources manager, where the two complaints were communicated to the claimant.
Efforts by the man to apologise and express his innocence before a disciplinary committee bore no fruit, as he was eventually sacked on May 25, 2016.
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The Co-operative Bank, on its part, said it reached the decision for termination after reviewing the CCTV footage “and confirmed that the allegations made by both staff were indeed legitimate”.
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