Court orders lawfirm to pay ex-secretary Sh 5.4 million for constructive dismissal after assault

Sometime in 2017, lawyer Collins Odhiambo and Lilian Jebitok were colleagues, working at Ogola Okello and Company Advocates.

However, what transpired on July 13, 2017, inside the office, as told by the two, is as different as heaven and earth.

On one hand, Jebitok, who was pregnant at three months, painted Odiambo as a quick-tempered person. She stated he beat her up. On the other hand, he painted her as a person who played the victim and an author of her exit from work.

Nevertheless, Justice Keli tilted the scales of justice in favour of Jebitok, and awarded her Sh 5.14 million as compensation. She noted that Jebitok suffered bodily harm inflicted by Odhiambo who was an employee but no action was taken against the aggressor.

 In a judgment that highlights the employer’s responsibility to keep the workplace safe, Justice Jemimah Keli ruled that Ogola Okello and Company Advocates, run by Daniel Ochieng Ogola, violated Lilian Jebitok’s rights to human dignity, freedom and security, equality and labour rights.

She said that Ogola should have removed Job Collins Odhiambo from the floor Jebitok was working on, temporarily, to probe what was going on.

Instead, the judge further said, despite the law firm and Odhiambo denying such an occurrence, the evidence before her indicated Jebitok was speaking the truth.

“ The court, upon hearing the case, confirmed that the actual bodily harm or violence against the claimant on the shop floor by the second respondent was true. The court holds that the blatant violence against the claimant on the shop floor was a severe and fundamental breach of the employment contract,” said Justice Keli, adding that the subsequent failure to allow her return to work after being admitted to hospital amounted to constructive firing.

“An employer has a strict and non-negotiable duty to provide a safe working environment. In my view, the failure and refusal of the claimant to return to the shop floor following the assault and her admission to hospital for injuries that threatened her

pregnancy provide a valid basis to conclude there was a constructive dismissal, and the

claimant was entitled to consider herself discharged from the employment contract. The

employer was duly informed of this via the advocate’s letter dated 31st July 2017,” the judge continued.

She was of the view that the lawyers who were working at the law firm turned a blind eye to the violence issue, and even tried to justify his conduct.

“The first respondent demonstrated the attitude of a negligent employer who did not consider his responsibility to ensure a safe working environment at his law firm as a legal duty. He was informed on the day after the incident and showed no effort to hold the 2nd respondent accountable for the assault,” observed Keli.

Ogola and Odhiambo separately denied the claims. On one hand, Ogola said that she never documented the verbal abuse and physical assault. He added that the office space is warm and friendly to all employees, adding that she had worked for six years. He urged the court to dismiss the case, saying that she did not perform her duties and was merely attempting to hide behind claims that Odhiambo had an explosive temperament.

He filed a counterclaim for a month’s salary, saying her resignation was irregular.

Odhiambo also claimed that Jebitok did not perform her duties diligently. He claimed that on the fateful day, she repeatedly shouted at him and used very derogatory words. According to Odhiambo, Jebitok allegedly took a seat and allegedly attempted to throw it out, leading to him reaching for it not to be hit. He said that two staff members intervened but she was allegedly still charging, adding that LSK allegedly declined to proceed with the complaint.

According to him, Jebitok was the author of her own misfortunes as she allegedly did not come to work, did other business, among others. He admitted the criminal case, but asserted that the alleged LSK complaint had no basis.

In her case, Jebitok narrated that Odhiambo was a senior associate advocate at the law firm. She explained that she was employed around October 2011 but did not have a written employment contract.

Jebitok told the court that Odhiambo was quick-tempered and she allegedly endured verbal insults whenever he was dissatisfied with her work. Fast forward to 2017, she said that she applied for annual leave, but the law firm did not act on the same.

According to her, on July 13, 2017, Odhiambo instructed her to prepare some court work and left her to type the same.

She said that at around 3 pm, he called and instructed her to give the work to a pupil who would approve the same. Nevertheless, the pupil did not realize the error, and this was the cause of what transpired later at 5 pm.

According to Jebitok, the associate was furious, claiming the work had been badly done, and her plea to re-do the work the following morning made him angrier.

She further claimed that he slapped her and put his hands around her neck and started strangling her so that she could not breathe.

She told the court that another lawyer at the law firm named Marie Kapiyo heard the commotion and rushed in to find Odhiambo assaulting him. She claimed that Kapiyo tried to plead with him to calm down.

Jebitok also said he pushed a seat towards her, which hit her stomach and she started to bleed instantly. She was three months pregnant then.

 The court heard that Jebitok called her employer, explained what happened and was advised to rush to Nairobi Women’s Hospital. Later at night, her condition worsened and she was transferred to Ongata Rongai branch. Jebitok said she informed her employer but did not get a response.

She also explained that doctors required her to be on bed rest from July 19 to 31, 2017 and that she also made a report to Kilimani police station and criminal proceedings were

instituted against Odhiambo as Kibera Criminal case number 1862of 2017. The OB no is OB/17/18/07/17, and the Law Society of Kenya. She called Police Constable Zachary Munene as a witness.

According to her, it was impossible to continue working at the law firm because she was distressed and humiliated.

On the other hand, Ochieng and Ogola were the witnesses on their side.