Tech firm ordered to pay ex-employee Sh29m for failing to reinstate him

A financial technology firm has been ordered to pay its former employee Sh29.5 million for failing to reinstate him even after he was acquitted in a case where he had been charged with theft.

Solomon Gichung'wa Njuguna was charged following the loss of Sh6.2 million during transactions but was acquitted eight years later.

While giving the award, Justice Ocharo Kebira found that failure by Sybrin Kenya to reinstate Njuguna after he was found innocent amounted to constructive dismissal.

There was a deal in place to reinstate him if he was found innocent at the end of the case.

After he notified the company that he had been found innocent, the judge noted, Sybrin did not honour their part of the deal which meant they had constructively fired him.

Njuguna went to court seeking Sh30.5 million from the company after he was suspended for the eight years that he stood trial.

He said he had been head hunted from Fintech Limited and employed by Sybrin in 2010. He was earning Sh235,000. He also received a Sh15,000 fuel allowance.

Njuguna's position at the firm saw him install and configure their software modules at its clients' sites and provide support. On May 30, 2011, he was suspended from his position as a software engineer after a criminal complaint was made against him by Diamond Trust Bank regarding the Sh6.2 million losses. He said Sybrin did not give him a chance to be heard.

The company said to have promised to reach out to him but reportedly failed to do so.

"I conclude the claimant's employment didn't come to an end either in the course of the suspension period or at any time after the conclusion of the criminal case in his favour, it only did when the respondent constructively dismissed him," said Kebira.

The court noted that Njuguna and other accused persons were merely scapegoats in the case.

During his trial, Njuguna said, the company did not pay him anything pending the outcome of the case.

He said a statement he recorded with the police after he was arrested was procured by threats, a matter he raised at the magistrate's court.

Njuguna said that after his acquittal, he informed his employer and urged them to lift the suspension but they refused. He said this move amounted to constructive dismissal, which was unfair and unlawful.

Njuguna told the court that he was working in a highly specialized and sensitive position which entailed processing cheques and payment systems and clearing cheques between banks through the Central Bank of Kenya. He said the suspension adversely affected his chances of getting employment in other companies within the Fintech space.

Njuguna said he applied for jobs but he would not be considered and would be informed that he had been blacklisted. "I worked in that space for eight years in Kenya and elsewhere in Africa, winning several awards due to my distinguished accomplishments," said Njuguna.

He said it was unfair for the company not to reinstate him or pay outstanding emoluments. It was unclear whether I was an employee of the company or not, he said.

Mr Wilson Sone, who testified on behalf of the company, said they needed to suspend him due to the sensitive nature of his role.

The company denied Njuguna's claim he communicated his acquittal to them, which left them uncertain about his employment and the criminal proceedings.

"I am not persuaded the claimant's claim is time-barred," said Justice Kebira.

Sone noted Njuguna was employed by Gold Avenue Africa as Head of Portfolio known as Umeme City, and in 2020, he was featured in the company's magazine as their cover model.

In his defence, between 2010 while he was still Sybrin's employee, National Social Security Fund (NSSF) contributions were made by the company until January 2012.

Between 2012 and 2013 there were no remittances but between 2014 and 2015, the NSSF remittances resumed by a company called Kinde Engineering Works which Njuguna said he did not know. The remittances again stopped between 2015 and 2019, when he was set free.

It was noted that he indicated on his LinkedIn profile that he worked for Radiant Company and Gold Avenue Limited, but in his defence, Njuguna said Radiant was not registered and that it was just a name he conceived but never pursued.

He said Gold Avenue was a company incorporated by his brother and his wife. It was a startup that he helped market but was never an employee. According to Sone, this showed he had deserted his employment and repudiated his employment contract.

They denied the suspension caused Njuguna to be blacklisted, not able to secure employment elsewhere. The firm also denied that Njuguna's skills were unique that he could only work with Sybrin.

Sybrin said after he was acquitted, Njuguna demanded to have his suspension lifted. He also demanded to be reinstated, and his benefits restored. He also, reportedly, demanded that the company should pay him salaries and benefits up to the date when the case was terminated.

"I conclude that up until the date of filing this suit, the claimant was an employee, entitled to his full benefits under his contract of employment with the respondent, the respondent didn't have any legal justification, for withholding his salary and benefits during the period."