If suspending Denis Galava was hard, Nation Media Group (NMG) may find it harder to deal with the consequences of the action. Mr Galava, who was special projects managing editor before he was suspended and then sacked over a hard-hitting editorial he wrote on President Kenyatta, has served his former employer with suit papers.
Insider sources at Nation say he is suing for wrongful dismissal, infringing on his economic right to earn a living, backed with a constitutional petition for denying him his right of freedom of expression through, among others, censorship. Separately, he has sued NMG CEO Joe Muganda for defamation.
In the case expected to be filed on Monday next, Mr Galava argues that NMG terminated him unfairly. In fact, he says the grounds cited for his sacking – not following editorial procedure – did not exist at the time of his termination. Nation Editor in chief Tom Mshindi only drafted an editorial policy on January 18th, almost three weeks after the Galava’s editorial was published, which stipulates the procedure for handling editorials, known in newsroom lingo as leader.
New editorial rules
The new rules, sent to editors and editorial writers and seen by BusinessToday, require that the editorial be approved by the editor-in-chief before publication. The rules further stipulate that the editorial must be submitted for approval by 2pm every day and propose the establishment of a bank of editorials to enable approval.
For the four counts, Mr Galava is demanding a compensation of Ksh425 million (or Ksh0.425 billion), which could be the highest ever payout an employee has sought for wrongful dismissal. The amount is about an eighth of Nation’s 2014’s profit before taxation of Ksh3.62 billion.
Such an amount would have to be provisioned in its financial results if the company is not insured against libel.
This demand is ruffling feathers at Nation Centre – just as it’s likely to attract public attention – and has degenerated into a blame game between management and editorial bosses.
Since being served, the Nation management held three meetings last week to discuss the matter where, according to people familiar with the matter, the CEO appeared to change tune and blame the editorial head for making him believe there was an editorial policy.
Mr Muganda, meanwhile, will defend himself in the defamation suit where he is accused of likening Mr Galava, then on suspension, to a bank employee who steals money in an interview with BBC radio.
Mr Galava’s affidavit is eagerly being awaited and is expected to be explosive since as managing editor for Saturday Nation and then Special Projects, he was an insider and had access to sensitive information on Nation’s behind-the-scenes journalistic breaches that could help firm up his case. If he does, reputations will be ruined and careers messed.
At 41, Mr Galava still had 19 years before hitting retirement age of 60 years. He argues that the manner in which he was sacked and the grounds make him unemployable, a situation which will deny him an earning. This, and adjusting for inflation, increases the compensation demand beyond what the Employment Act provides.
What the Employment Act says about dismissal
Section 49 of the Employment Act provides for remedies for wrongful dismissal and unfair termination.
(1) Where in the opinion of a labour officer summary dismissal or termination of a contract of an employee is unjustified, the labour officer may recommend to the employer to pay to the employee any or all of the following:
(a) the wages which the employee would have earned had the
employee been given the period of notice to which he was entitled
under this Act or his contract of service;
(b) where dismissal terminates the contract before the completion of
any service upon which the employee’s wages became due, the
proportion of the wage due for the period of time for which the
employee has worked; and any other loss consequent upon the
dismissal and arising between the date of dismissal and the date of
expiry of the period of notice referred to in paragraph (a) which the
employee would have been entitled to by virtue of the contract; or
(c) the equivalent of a number of months wages or salary not exceeding
twelve months based on the gross monthly wage or salary of the
employee at the time of dismissal.