By The Weekly Vision Court Reporter
The Employment and Labour Relations Court has ordered Royal Tulip Canaan Nairobi and its former acting general manager to pay former sales account manager Lucy Wacheke Gatere approximately KSh1.1 million after finding that she was unfairly dismissed following a dispute over the double-booking of a hotel conference room.
In a significant ruling that also addresses the increasingly contentious issue of workplace privacy, the court held that an employer is entitled to inspect its own computer equipment where there is a legitimate business reason to do so, even where the equipment contains an employee’s personal emails, private information or business material.
Wacheke had sued the hotel and its then acting general manager after her employment was terminated in May 2022. At the centre of the dispute was a conference-room booking involving a client’s event. According to the evidence reported in the judgment, the booking problem prompted management to investigate Wacheke’s handling of the reservation, including whether she had checked the hotel’s events calendar and her work emails.
Wacheke had worked for the hotel since October 2016 and, shortly before the dispute, had received a one-year contract as a sales account manager beginning on 5th April 2022. The dispute escalated on 6th May 2022 when Wacheke was summoned to a meeting with the acting general manager over the double-booking.
She told the court that the manager verbally dismissed her during the meeting, accusing her of mishandling the situation after a client complained. She further alleged that the manager followed her to her workstation, grabbed her hands and instructed an IT officer to lock her computer.
The hotel, however, maintained that investigations had uncovered several problems, including unread work emails, incorrect banquet event orders and her failure to check the events calendar before generating the booking documentation. The court accepted that there were legitimate grounds for the employer to investigate Wacheke’s conduct.
It found that she had generated a banquet event order without checking the events calendar and had admitted that she had failed to check it during the last two weeks of April. The court therefore accepted that the hotel had a valid basis for disciplining her. But having a valid reason to discipline an employee, the court held, is not the same thing as following the law when terminating employment.
One of the most important aspects of the judgment concerns the inspection of Wacheke’s office computer. The hotel discovered that the computer had been configured with an Outlook account belonging to Pride East Africa Limited, which Wacheke described as her personal business. She admitted using the employer’s computer for private business.
She explained that the arrangement had arisen during the Covid-19 period after her salary was reduced by half, and that an IT officer had assisted her in transferring information from her personal computer to the office machine. Wacheke argued that the inspection of the computer amounted to an invasion of her constitutional right to privacy. The court disagreed. It held that the hotel was entitled to inspect its own computer where there was a legitimate business purpose, particularly because the inspection arose from an investigation into the conference-room booking and the use of the hotel’s work systems.
The court described the inspection as lawful and proportionate, conducted for a legitimate business purpose. The judgment also carries a broader warning to employees who use employer-owned computers and official email systems for private affairs. The court observed that an employee should be cautious when communicating private matters through an employer’s official email system or computer.
In effect, the ruling establishes an important distinction: an employee may have privacy rights, but those rights do not automatically prevent an employer from examining equipment belonging to the employer where there is a legitimate workplace reason for doing so.
Despite finding that the hotel had legitimate grounds to investigate and potentially discipline Wacheke, the court found that the termination itself was procedurally unfair. It found that Wacheke had effectively been dismissed on 6th May 2022, before the hotel had commenced or completed the disciplinary process. The hotel subsequently issued show-cause letters and disciplinary hearing notices, including notices for hearings scheduled for 27th May and 25th August.
The court held that those subsequent steps could not retrospectively cure an unlawful termination that had already taken place. In strong language, the court described the later disciplinary notices as an attempt to retrospectively sanitise a decision that had already been made.
It further held that an employer cannot dismiss an employee first and then conduct a disciplinary hearing afterwards as though the dismissal had not already occurred. Such a process, the court stated, is a nullity in law.
The ruling therefore reinforces a central principle of Kenyan employment law: an employer may have a genuine and valid reason for disciplining an employee, but it must still comply with the statutory requirements of procedural fairness before termination.
Having found that Wacheke had been unfairly dismissed, the court awarded her a total of approximately KSh1.1 million, comprising KSh255,300 as notice pay, KSh382,950 as compensation for unfair termination, and KSh500,000 for harassment and violations of her rights to dignity, fair labour practices and fair administrative action.
The court, however, rejected several other claims advanced by Wacheke. These included a claim for approximately KSh1.9 million in commissions, KSh638,250 in gratuity, future salary and an order requiring the employer to give her access to the work computer.
