The Employment and Labour Relations Court has upheld a decision by Safaricom Plc to dismiss its former Head of Regional Expansion, Brian Njoroge Wamatu, over allegations that he improperly accessed and shared confidential company and customer information.

The court ruled that Safaricom had both a valid reason and followed a fair disciplinary process before dismissing the employee in June 2019 in a dispute arising from allegations of unauthorised access to confidential subscriber information.

The court dismissed Mr Wamatu's entire claim, including allegations of unfair termination, defamation and loss of employee share benefits.

The dispute arose after Mr Wamatu was arrested in June 2019 following investigations into allegations that Safaricom employees had conspired to illegally access, compile, share and sell confidential subscriber information.

He said six men accosted him while he was having dinner at a Nairobi eatery on June 7, 2019, assaulted him, forced him into a waiting car and took him to CID headquarters for interrogation without explaining the reason for his arrest.

He said he was later held at two other police stations until June 10, 2019, when he was arraigned on charges of computer fraud and demanding Sh300 million with menaces, before the charges were later amended to conspiracy to commit a felony.

Mr Wamatu maintained that the company orchestrated his arrest to make him a scapegoat for data losses and claimed the disciplinary process had been predetermined.

Safaricom denied the allegations, saying it merely reported suspected criminal conduct to investigators. The company denied that the report to the police was actuated by an ulterior motive.

It contended that after the police carried out investigations, they found the complaint justifiable and caused the claimant's arrest and arraignment in court.

Other court proceedings also arose from the same alleged data breach, including civil proceedings by Safaricom seeking to restrain disclosure of confidential customer information.

The telco argued that its internal investigation linked Mr Wamatu to the unauthorized acquisition and proposed sale of confidential subscriber and internal corporate information, prompting both police reports and disciplinary action.

Court records showed Mr Wamatu joined Safaricom in November 2008 as a VAS Product Manager before rising to Head of Regional Expansion. His monthly salary had increased from Sh170,000 to Sh1.2 million by the time his employment ended.

Breach of confidentiality

Safaricom told the court its internal investigation concluded that Mr Wamatu had colluded with colleagues to obtain confidential subscriber data, internal security information and remuneration details of senior managers without authority.

The company argued the conduct breached confidentiality obligations under his employment contract and company policies.

The court accepted that position, saying the employer was entitled to rely on findings available during the disciplinary process.

“In the court’s view, the Investigation Report provided sufficient material upon which the Disciplinary Committee and the respondent (Safaricom) were reasonably entitled, at the time, to entertain a genuine belief that the claimant had committed the infractions in question,” the court said.

The court also rejected Mr Wamatu's argument that he had been denied a fair hearing because he was attending a Directorate of Criminal Investigations meeting on the day scheduled for the disciplinary session.

It found evidence presented by Safaricom showed the DCI meeting ended around midday, leaving sufficient time for Mr Wamatu to attend the 4 p.m. disciplinary hearing.

"The claimant had no plausible explanation to account for his failure to turn up for the disciplinary hearing. As such, he cannot blame the respondent for having proceeded with the case against him in his absence,” the court said.

The court further held that Safaricom had complied with its disciplinary procedures by issuing a show-cause letter, considering Mr Wamatu's written responses, supplying him with investigation material and hearing his subsequent appeal before dismissing it.

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It also found the allegations amounted to gross misconduct, making the formal disciplinary process appropriate under the company's policy.

The court said employment law does not require an employer to prove misconduct beyond reasonable doubt before dismissing an employee, provided the decision is based on a genuine belief supported by available evidence.

Mr Wamatu had also sought damages for defamation, arguing publicity surrounding his arrest damaged his reputation. The court dismissed that claim after finding it was filed outside the one-year statutory limitation period and was unsupported by independent evidence proving reputational harm.

"Defamation is deemed to have occurred only if it is demonstrated that the defamatory material was published to a third party," the court said.

It also rejected his claim for employee share ownership plan (ESOP) shares, finding he had failed to produce sufficient evidence supporting the claim.

jwangui@ke.nationmedia.com