Trade Secret
Makoha v Human Perfromance Dynamics Africa Limited (Cause 1593 of 2014) [2022]
Facts
Linda Nasike Makokha (the claimant) was initially employed by Bharti Airtel International as a secretary in December 2000 and later promoted to a personal assistant. In 2013, she was placed on a one-year renewable contract. On 17 April 2014, her employment was terminated by Human Performance Dynamics Africa Limited (the respondent), where she was deployed to Bharti Airtel. The termination was based on allegations of her involvement in the loss of property within Bharti Airtel premises. The claimant denied these allegations, arguing that the termination was unlawful and unfair, as there was no valid reason and she was not accorded a fair hearing. The claimant sought damages for unfair termination, along with other claims.
Issue
Was the termination of the claimant’s employment lawful and fair?
Is the claimant entitled to the remedies sought?
Rule
The relevant legal provisions applied were sections 43 and 41 of the Employment Act, 2007. Section 43 requires the employer to prove the reasons for termination, which must be valid and fair. Section 41 mandates that an employer must provide the employee with an opportunity to defend themselves against any allegations before termination.
Analysis
The court focused on both the substantive and procedural aspects of the termination. Substantively, the court found that the reason for termination—alleged involvement in the loss of property—was valid. The claimant admitted to taking items from the premises without authorisation, which the court deemed sufficient grounds for termination under section 43 of the Employment Act.
Procedurally, the court examined whether the claimant was given a fair opportunity to defend herself. The evidence showed that the claimant participated in a disciplinary hearing where she was informed of the allegations and given a chance to respond. She also provided a written explanation prior to the hearing. This satisfied the requirements of section 41, ensuring procedural fairness.
An important aspect of the case involved the issue of trade secrets. The termination letter highlighted that the claimant, during her employment, had access to confidential information and trade secrets belonging to Bharti Airtel and that she was expected to maintain confidentiality even after termination. The respondent emphasised that the claimant’s actions, which were deemed to involve a breach of trust and integrity, were particularly serious given her access to sensitive information. The court acknowledged that the nature of the claimant’s position, which involved handling sensitive information, heightened the significance of the misconduct. This linkage between the claimant’s access to trade secrets and her termination reinforced the respondent’s justification for dismissing her, as the breach of trust was directly related to the integrity required in her role.
The court concluded that both the substantive and procedural requirements for fair termination were met. The claimant's claims for damages, loss of reputation, and rewording of the termination letter were dismissed due to the validity of the termination. Additionally, the claims for bonus, airtime allowance, and pension were not substantiated and were also dismissed. However, the court ordered the respondent to settle the claimant’s salary for April 2014, one month’s salary in lieu of notice, and accrued leave pay.
Conclusion
The court held that the termination of the claimant’s employment was lawful and fair. The claims for damages, loss of reputation, and other allowances were dismissed, except for the admitted claims related to salary, notice pay, and accrued leave, which the respondent was directed to settle within fourteen days. Each party was ordered to bear its own costs.
Judgement available here.