Banking, Insurance &Finance; Union v Harambee Co-operativeSavings And Credit Society [2013] KEELRC 250 (KLR)
The bottom line
#Kenya's Industrial Court upheld a Sacco's summary dismissal of an employee who leaked confidential documents, ruling the dismissal both justified and fair.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for summary dismissal under Sections 43 and 45 of the Employment Act 2007
The Respondent had valid reason: the Grievant extracted confidential information from the Respondent's computer system using his password and circulated it to unauthorized persons, causing reputational and financial harm
The Court found sufficient factual material establishing that the Grievant's password was used to extract the Gina Din payment voucher, which found its way to Ontieri, the media and parliamentary committees. The allegations it supported were discounted by investigatory agencies, members made panic withdrawals exceeding Kshs.109 million, and the Respondent suffered uncontroverted financial loss, establishing complicity and breach of the duty of fidelity.
Procedural fairness under Section 41 of the Employment Act 2007
Procedure was in conformity with Section 41: the Grievant was asked to show cause, responded, was suspended to allow investigations, and was heard four months later accompanied by a union representative
The show-cause letter issued on 2nd February 2010, the Grievant responded promptly the same morning, and suspension followed to pave way for investigations including an audit trail. The disciplinary hearing of 30th June 2010 gave the Grievant four months to prepare his defence, and he was accompanied by a union representative. No specific CBA clause was shown to have been violated.
Alleged victimization of trade union representatives
The allegation of victimization was adequately rebutted; other shop stewards left for reasons unconnected to union activities
The Respondent showed that the stewards named by the Grievant left through redundancy, desertion, criminal conviction or voluntary resignation. Vacancies were filled by new shop stewards. The evidence contained no visible element of victimization, and the Grievant's troubles arose from his involvement in power struggles against the Sacco's Central Management Committee rather than his union role.
Remedy of reinstatement
Reinstatement was not available because the trust and confidence underpinning the employment relationship had been irretrievably destroyed
The Grievant expressly sought reinstatement only and not compensation. The Court found he had burnt the bridges of trust, confidence and fidelity with his employer, caused considerable financial loss, and waged a campaign against the CMC, making reconstruction of the employment relationship impossible. Given the dismissal was fully justified, even compensation did not arise for consideration.
Legal principles established
#- Whether documents are confidential at the workplace is determined by whether their release would damage the employer's business
- The employment relationship is founded on mutual trust, confidence, good faith and fidelity, obliging the employee to keep the employer's documents confidential
- Trade union representatives must focus on their core mandate of worker representation and not digress into management power struggles
Court orders
#- 1.The Claim is dismissed with no order on the costs
- Jurisdiction invoked
- Section 15 of the Labour Institutions Act 2007; Industrial Court jurisdiction over unfair and unlawful termination disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance &Finance; Union v Harambee Co-operativeSavings And Credit Society [2013] KEELRC 250 (KLR)", Case Analysis (2013). Cause Number 216 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/250/eng@2013-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.