Banking, Insurance & Finance Union (Kenya) v Transnational Bank Ltd [2014] KEELRC 279 (KLR)

The Court perused the Human Resource Policy and the contract of employment and found employees prohibited from borrowing from customers and from outside business without management authority. The Grievant expressly admitted the borrowing and the firewood business, and the customer's loan to the Bank fell into arrears as a direct consequence. The employer thus discharged its burden under Sections 47(5) and 45(2)(a) of the Employment Act on a balance of probabilities.

Fair procedure under Article 47 of the Constitution and Section 41 of the Employment Act was met: the Grievant received a show cause letter, replied in writing, was notified to appear before the disciplinary committee, and was heard. Her failure to bring a union representative was of her own making; the employer's duty to allow time arises only where the employee requests it or seeks a postponement, neither of which occurred.

Contrary to both parties' framing, the separation letter stated the Grievant was entitled to one month's salary in lieu of notice, salary for days worked and accrued leave, subject to offsetting loans. The Court therefore recharacterised the separation as a normal termination, with the CBA (Clause A5) governing the notice period and benefits payable.

Having found a valid reason and fair procedure, and having recharacterised the separation as a normal termination, the Court directed the Respondent to compute and pay CBA terminal benefits within 30 days, applicable to offset any outstanding loan, with the computation filed in Court within 30 days. Costs were awarded to the Claimant as the claim was partly successful.