How Facebook 'like' cost KeNHA staffer his job

For 13 years, Dismas Kungu Kira worked for the Kenya National Highways Authority (KeNHA) without any issue.

But a simple thumbs-up emoji, liking a Facebook post by Kileleshwa MCA Robert Alai, then being first to comment and tagging his colleagues with the post cost him his job.

Mr Kungu was hired in 2012 as an assistant supply chain management officer, with his duties being to sit in tender evaluation committees.

In his case before the Employment and Labour Relations Court, Kungu argued that the emoji issue was a smoke screen as he had anonymously informed Director General Peter Munindia about strict instructions from superiors to manipulate the evaluation outcome to favor certain bidders whose names were clearly marked for each tender in flagrant violation of the Public Procurement Laws and the Constitution.

In his letter dated February 12, 2019 and copied to the Ethics and Anti-Corruption Commission (EACC), the director Asset Recovery Agency (ARA) and Public Procurement Regulatory Authority (PPRA), Kungu also cited coercion to recommend some contractors who were not eligible since they did not have genuine mandatory required documents or had visibly forged qualifications, and alleged deliberate disqualification of bidders who had largely fulfilled the requirements in favour of preferred bidders to win.

Promised kickbacks

He alleged that the majority of committee members would be promised kickbacks, motivating them to comply with the instructions from their bosses.

However, according to him, some of the issues in the letter were leaked to bloggers, who then posted about it on social media.

A simple like of a post which alleged that Kenha officials were involved in graft, however, became a fatal act as he was first suspended, then kicked out for gross misconduct. He argued that he ought to have been warned.

“An employer must distinguish between trivial misconduct and serious misconduct warranting dismissal. A Facebook reaction neither compromised the respondent’s business, nor jeopardized national security, nor endangered the safety of anyone. No evidence was ever tendered by the respondent to show that a thumbs-up emoji undermined the Authority’s operations,” argued Kungu.

He testified in his case before Employment and Labour Relations Judge Jemimah Wanza that he was being singled out for whistleblowing.

Nevertheless, the judge dismissed his case, saying that the termination was lawful and fair.

“The petition is held to be without merit and is dismissed with costs to the respondent,” said Justice Wanza.

According to her, Kungu was given a chance to argue against dismissal, in which he admitted to the allegations, while in other letters, he denied them.

He argued that a thumbs up has different meanings, including a signal of awareness of public debate, expressing sympathy, a sarcastic response or an implied lack of genuine engagement.

He said that it was unfair for his ex-employer to kick him out based on the like, adding that it amounted to killing a mosquito with a sledgehammer.

“The respondent’s heavy-handed response was clearly motivated by desire to eliminate the petitioner as retaliation for whistleblowing and not to maintain discipline or protect its reputation,” argued Kungu.

He further said that he was allegedly taken through a pre-determined disciplinary process as he was fired and his appeal was dismissed on September 8, 2020.

Kungu, however, admitted that in a bid to retain his job, he wrote several letters to Kenha, some distancing himself from, while in others he admitted fault.

He, however, insisted that he was fired for attempting to fight corruption within the authority. He asserted that his page was personal and that he commented on his own capacity and not as a staff.

According to him, Alai’s comments were true.

In its response, KeNHA argued that Kungu had wrongly filed his case as a constitutional violation one, instead of a normal employment dispute.

It stated that he was on permanent and pensionable terms, but he violated the Human Resource Policy and Procedure Manual 2017 and the Social Media Policy 2017.