Trade Secret
Leland I. Salano v Intercontinental Hotel (Cause No. 805 of 2012) [2013] KEELRC 536 (KLR) (19 July 2013) (Ruling)
Facts
Salano, an IT/Assistant Systems Manager at Intercontinental Hotel from 1996, was summarily dismissed on 9 December 2011 and filed an unfair-termination claim in May 2012, using internal government correspondence and emails he had accessed through his IT role, allegedly showing racial discrimination, as evidence. The hotel applied to have these documents expunged as confidential and improperly obtained.
Issues
What constitutes confidential documents in an employment relationship; whether a dismissed employee may rely on such documents to support an unfair-termination claim; and the balance between employer confidentiality and privacy rights and the employee's right to fair labour practices and a fair hearing.
Rule
Articles 31 (privacy) and 35 (access to information), Constitution of Kenya 2010; Industrial Court Act 2011 s.20 (court not strictly bound by rules of evidence); the English precedents Faccenda Chicken Ltd v Fowler [1987] and Medivac International v Moore [1988] on post-employment confidentiality; Quinlan v Curtiss-Wright Corp [2010] on documents obtained during employment supporting discrimination claims.
Analysis
The court articulated a multi-factor test for confidentiality disputes: how the employee obtained the documents, whether they were shared with others, their nature and content, the existence of a confidentiality policy, disruption to the employer's business, and the balance between the employer's right to conduct business and the employee's right to a fair hearing. It found no written confidentiality policy, no "confidential" markings, and that Salano accessed the documents in the ordinary course of his IT duties rather than by hacking; relevance to the discrimination-tinged unfair-termination claim outweighed confidentiality concerns.
Conclusion
Application to expunge the documents dismissed; the documents were ruled admissible and the main unfair-termination case was to proceed. This ruling has become a frequently cited precedent on confidential documents in Kenyan employment litigation.
Ruling available at kenyalaw.org.