Banking, Insurance and Finance Union (K) v Standard Chartered Bank of Kenya Ltd [2013] KEELRC 886 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for poor performance still requires a fair hearing, awarding compensation where the bank skipped due process.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination for poor performance
The termination of the first Grievant was unfair for want of due process; the Respondent did not follow the law or its own internal disciplinary procedures
Although the Respondent asserted a long history of poor performance, the first Grievant was first issued a termination letter that did not disclose reasons, and the Respondent's own Head of Human Resources admitted in cross-examination that the internal disciplinary process was not followed. Section 41 of the Employment Act requires notification of the charge, a hearing, the right to be accompanied, and consideration of explanations. None of these steps were taken, warranting an award of 10 months' pay in compensation.
Constructive dismissal
The second Grievant's claim for constructive dismissal failed for lack of corroborative evidence
The second Grievant alleged that withdrawal of his system access rights and threats made his position untenable, forcing his resignation. However, apart from his own word, he provided no corroborative evidence. The Court also found that the erroneous dating of the Respondent's acceptance letter (10th December 2008) did not alter the fact that he actually tendered his resignation on 22nd December 2008, which was accepted.
Locus standi of a trade union to represent a non-unionisable employee
The Claimant Union had no capacity to bring a claim on behalf of the second Grievant, a non-unionisable employee; the claim was incompetent ab initio
The second Grievant admitted in cross-examination that his position was non-unionisable and not covered by the Collective Bargaining Agreement. Categorisation of positions into unionisable and non-unionisable cadres is clear and predictable, and the fact that other non-unionisable grievants' cases were settled out of court did not estop the Respondent from raising locus standi. Citing Polypipes Ltd, the Court held a union can only represent its own members.
Legal principles established
#- Poor performance is a legitimate ground for termination, but the same procedural protections applicable to misconduct apply to poor-performance terminations
- A trade union has locus standi only to represent its own members; non-unionisable employees fall outside the union's capacity
- For a constructive dismissal claim to succeed, the claimant must show the respondent made it extremely hard to continue working
Court orders
#- 1.The termination of the first Grievant's employment is found unfair for want of due process and she is awarded compensation equivalent to 10 months' pay based on her gross salary as at the time she left the Respondent's employment
- 2.The claim for constructive dismissal by the second Grievant fails and is dismissed
- 3.The second Grievant's claim is dismissed as the Claimant Union had no capacity to bring the claim on his behalf, being incompetent ab initio
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment and labour relations disputes (claim for unfair termination and constructive dismissal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ben Kiplagat Tunduny v Standard Chartered Bank [2015] KEELRC 955 (KLR)[2015] KEELRC 955 (KLR)27 Feb 2015
Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance and Finance Union (K) v Standard Chartered Bank of Kenya Ltd [2013] KEELRC 886 (KLR)", Case Analysis (2013). Cause No 1610 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/886/eng@2013-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.