Man fired for using employer's internet wins dismissal case

Justice Christine Baari said it was harsh and unwarranted for Mayfair Holdings, which runs the prestigious Imperial Hotel, to sack Daniel Ochieng Ogayi.[iStockphoto]

A hotel employee fired for using company internet to access personal information has been awarded Sh417,600 by a Kisumu court.

Justice Christine Baari of the Employment and Labour Relations Court said while it was unethical for Daniel Ochieng Ogayi to utilise his employer's internet for personal use, it was harsh and unwarranted for Mayfair Holdings, which runs the prestigious Imperial Hotel, to sack him.

"Imperial Hotel's reasons for dismissing Ogayi are neither fair nor justified. Accessing documents from an employer's computer is not, in my view, a ground for summary dismissal or for termination at all," the judge said.

"The summary dismissal was too harsh a penalty in a job-scarce economy, and for which a warning would have been sufficient. The dismissal failed both the procedural and the substantive fairness tests. It was unfair," Justice Baari said further.

She said there was no evidence to show Ogayi was heard in relation to the charges levelled against him before he was summarily dismissed.

The judge noted that the Employment Act, 2007, requires that an employer, before dismissing an employee on the ground of misconduct, poor performance or physical incapacity, explains to the employee in a language the employee understands, the reasons for which the employer is considering termination.

"...that the hotel pays Oganyi with months' salary as compensation for unfair dismissal at Sh 278,400 and four months' salary in lieu of notice at Sh139,200," said the judge.

Justice Baari said it could have awarded Oganyi more damages given that he had worked for the hotel for 13 years but he sought an award of eight months' salary as compensation for the unfair dismissal. His pleadings tied the court's hands on the amount of damage it could give.

Imperial Hotel said downloading personal documents on company computers amounted to doing personal work during the employer's time, which it interpreted to constitute gross misconduct to warrant summary dismissal.