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ELRCPartially AllowedCause Number 25 of 2013· [2013] KEELRC 604 (KLR)

Nicholas Otinyu Muruka v Equity Bank Limited [2013] KEELRC 604 (KLR)

Industrial Court of Kenya
24 June 2013
2,400 words in judgment
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The bottom line

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A Kenyan court ruled Equity Bank unfairly dismissed an employee over mere fraud suspicion, awarding him over Kshs.807,500 because he was never given a hearing.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent as Credit Officer-Consumer Lending at its Fourways Branch from 2008 at a monthly salary of Kshs.47,500, was suspended on 24 July 2010 (with effect from 15 July 2010) to allow investigations into an alleged fraudulent transaction involving stolen passwords, and was charged criminally with theft by servant, charges still pending. On 24 August 2011 the respondent issued a letter of summary dismissal backdated to 15 July 2010, without notice, hearing or payment of dues. The respondent filed no defence and judgment was entered for the claimant on 2 May 2013, with the cause proceeding for the claimant's evidence on 4 June 2013. The court framed three issues: gross misconduct justifying summary dismissal, fairness of the termination, and entitlement to remedies. It held that under section 44(4)(g) of the Employment Act an employer must demonstrate reasonable and sufficient grounds linking an employee to criminal acts - mere suspicion is insufficient - and that even where just cause exists, sections 41 and 43 on notification, hearing and proof of reasons must be complied with. The court found it an unfair labour practice to suspend an employee for investigations and then backdate a summary dismissal without a hearing, holding the effective date of termination to be 24 August 2011. Judgment was entered for the claimant: a declaration of unfair termination, compensation of Kshs.142,500 (3 months), notice pay of Kshs.47,500, salary arrears of Kshs.617,500 for 13 months (totalling Kshs.807,500 with interest from judgment until payment in full), a certificate of service within 14 days, and costs of the cause. Delivered by M. Mbaru, Judge, on 24 June 2013.

Key legal issues

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01

Gross misconduct under section 44(3) and (4)(g) of the Employment Act

Holding

The respondent failed to demonstrate reasonable and sufficient grounds linking the claimant to the alleged fraud; criminal charges still pending did not justify summary dismissal

Reasoning

The claimant was suspended on 24 July 2010 to pave way for investigations, but the respondent did not demonstrate what investigative steps were taken. The criminal charges remain pending. Under section 44(4)(g), suspicion of a criminal offence justifies summary dismissal only on reasonable and sufficient grounds, which must be proved under sections 41 and 43. Mere suspicion cannot ground dismissal as it would enable harassment of employees.

p. 3
02

Backdating of summary dismissal and denial of hearing

Holding

Backdating the dismissal to the suspension date without affording the claimant a hearing was an unfair labour practice; the effective date of termination was 24 August 2011

Reasoning

The respondent suspended the claimant to allow investigations, then issued a dismissal letter dated 24 August 2011 backdated to 15 July 2010 without any internal due process. The court held that even summary dismissal for gross misconduct requires notification and hearing under section 41, and proof of reasons under section 43. The backdating was oppressive and the claimant is entitled to salary for the intervening period of 13 complete months.

p. 4
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Remedies for unfair termination

Holding

The claimant was awarded 3 months' pay as compensation, one month's notice pay, 13 months' salary for the suspension-to-termination period, a certificate of service and costs

Reasoning

Having found unfair termination and an unfair labour practice, the court exercised its discretion to award damages of 3 months' pay (Kshs.142,500), notice pay (Kshs.47,500) and salary for the period from suspension to the actual termination date (13 months, Kshs.617,500), totalling Kshs.807,500 with interest, plus a certificate of service within 14 days and costs of the cause.

p. 4

Legal principles established

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  • An employer invoking section 44(4)(g) of the Employment Act must demonstrate reasonable and sufficient grounds linking the employee to criminal acts; mere suspicion is insufficient
  • Even where an employer has just cause under section 44, it must still comply with sections 41 and 43 of the Employment Act; summary dismissal in disregard of notification and hearing amounts to unfair termination
  • Backdating a summary dismissal to the date of suspension, without hearing the employee, is an unfair labour practice

Court orders

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  1. 1.A declaration that the termination of the employment of the Claimant by the Respondent was unfair
  2. 2.The Respondent to pay the Claimant compensation at Kshs.142,500.00
  3. 3.The Respondent to pay notice pay at Kshs.47,500.00
  4. 4.The Respondent to pay salaries due at Kshs.617,500.00, all amounting to Kshs.807,500.00 plus interest at court rates from the date of judgment till full payment
  5. 5.The Respondent to issue the Claimant with a Certificate of Service within 14 days
  6. 6.The Respondent to pay costs of the cause

Authorities

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Legislation

  • Employment Act, 2007section 44
  • Employment Act, 2007section 44(3)
  • Employment Act, 2007section 44(4)(g)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim for unlawful termination (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nicholas Otinyu Muruka v Equity Bank Limited [2013] KEELRC 604 (KLR)", Case Analysis (2013). Cause Number 25 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/604/eng@2013-06-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.