The law and the pyrrhic awards

 

Decisions of courts in Kenya often attract approval or disavowal, based on the perception of individuals on fairness.

This was the case when earlier this week an Employment and Labour Relations Court judge awarded a claimant Sh1 as compensation for unfair termination.

This minuscule award, would for any person be considered derisory, leave alone for a person such as the claimant who held a senior position in the government.

In this case, the claimant could be said to have been dismissed by stealth, simply by the announcement of appointment of her successor and with no other communication or explanation.

The judge found that the manner in which the claimant employee was terminated was unfair.

Strict requirement

This was because there was a failure to meet the strict requirement of the law that she needed to have been given a chance to explain herself before any action could be taken in dismissing her.

Under the employment law of Kenya, the claimant of unfair dismissal is required to be compensated by up to one year’s salary as damages.

Therefore, the court has the leeway to decide how much to penalise an employer, depending on the severity of the misconduct.

In this case, the judge held that though the termination was unfair, the fact that the claimant had after the termination been found to have been in possession of assets whose source she could not explain to the satisfaction of a court , implied improper conduct, which ought not to be rewarded by a significant financial award.

Contemptuous damages

Such an award is in law known as contemptuous damages. They are awarded in a situation where though the claimant is technically entitled to succeed, the court thinks the action should not have been brought.

Contemptuous damages are generally awarded to strike a blow for public policy so as to let a person not benefit unduly.

Sometimes they are awarded in actions for defamation where harm to reputation is deemed minimal.

Mr Bruce Grobbelaar, a former professional footballer, was in 2002 awarded £1 and a very large cost bill for a defamation claim, which the court thought was minor.

The finding in that case was in line with a case decided by the Court of Appeal in 2017.

In this case, a claimant sued for unfair termination of his employment by Kenya Ports Authority.

The claim was based on the fact that the employer had not accorded the worker disciplinary hearing as required by the law.

One of the grounds for dismissal was that the employee had presented forgeries of his academic qualifications and obtained employment on those forgeries.

The matter went to the Court of Appeal, which held that even though the employer was in error for not honouring the worker’s right to a disciplinary hearing, public policy militated against rewarding the employee for such deceit.

Illegal act

Citing an old principle of English Common Law known in Latin as ex dolo malo non oritur actio, which loosely translates to “no action arises from deceit”, the Appellate Court dismissed the claim, stating that no court could lend aid to a man who founds his cause of action upon an immoral or illegal act.

The Appellate Court upheld the employer’s appeal but ordered each party to bear the costs of the case, in apparent signal that none of the parties was blameless.

A somewhat similar case arose in England where an employee who had sustained injuries at the workplace sued the employer for negligence.

The court declined to give any damages for loss of future earnings by noting that the employee failed to disclose to the company that he was epileptic before taking up the job.

In short, the principle applied in this case is just one where the courts essentially take umbrage at being used to honour and uphold the rights of a person who is otherwise culpable for acting unlawfully in other instances.

Put differently, this might be said to be simply saying that the court will not wash the hands of someone who comes to it with unclean hands.