Banking Insurance & Finance Union (Kenya) v Co-operative Bank of Kenya Ltd [2014] KEELRC 888 (KLR)
The bottom line
#Kenya's Industrial Court ordered Co-operative Bank to reinstate two employees it had fired without a hearing or proof of wrongdoing.
What this practically means
#Executive summary
#Key legal issues
#Whether there was valid reason for termination
The Respondent failed to prove valid reason; the termination was substantively unfair
The Respondent alleged the checkers negligently failed to print and check partition 27, facilitating a loss of over Shs.10 million. However, the investigation report was never produced in court or during conciliation despite an agreement to do so; a fellow checker, Jacqueline Muga, was reinstated while the Grievants were dismissed; one Grievant was terminated for a period when he had been transferred out of the department and the other while on leave; and the accused fraudster's supervisor and Boniface's replacement were never disciplined. The debit-restricted account anomaly was unexplained. The burden under Sections 43 and 45(2)(a) was not discharged.
Whether the procedure adopted was fair
The procedure was unfair; the Grievants were never given a hearing
The Grievants received suspension letters that did not state reasons, were issued show cause letters which they answered, and were then terminated without any disciplinary hearing. RW2 confirmed the Grievants were not called for a hearing before or after termination. Section 41 requires that an employee be informed of the reasons for termination in the presence of a colleague or union official and be heard. The CBA did not provide the disciplinary procedure required by Section 12 of the Employment Act. The Respondent's reliance on common law was misplaced given the Judicature Act.
Whether the Grievants are entitled to reinstatement
Reinstatement was granted as the case met the conditions in Section 49(4)
The court distinguished the two authorities cited by the Respondent, in which only procedural fairness had failed or had not been considered. Here both substantive and procedural fairness failed. The court considered the Section 49(4) factors: the manner of exit, the selective punishment, absence of warning letters, the withholding of documents in bad faith, and the Grievants' wish to return to employment. Reinstatement with the terms they would have earned was ordered to take effect by 1st April 2014.
Legal principles established
#- The employer bears the burden of proving the reason for termination; failure to prove it renders the termination unfair
- Failure to give an employee a hearing before termination violates Section 41 and renders the termination procedurally unfair
- Where common law and legislation both govern a matter, statutory provisions prevail over common law principles
Court orders
#- 1.The Grievants be re-engaged by the Respondent in the same or comparable position as they were before termination and be given the terms they would have been earning had they not been terminated
- 2.The re-engagement be with immediate effect and in any event not later than 1st April 2014
- 3.The Claimant be reimbursed all expenses incurred in the prosecution of the case, including expenses incurred by the Grievants, such expenses to be assessed by the Registrar
- 4.The Claimant is not entitled to professional fees payable to advocates
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court under the Employment Act, 2007 (Sections 41, 43, 45, 46, 49) and the applicable Collective Bargaining Agreement
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance & Finance Union (Kenya) v Co-operative Bank of Kenya Ltd [2014] KEELRC 888 (KLR)", Case Analysis (2014). Not stated in judgment (Industrial Court claim; Grievants Boniface Mwaura Gitachu and David Musiomi Milimu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/888/eng@2014-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.