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ELRCDismissedCause No. 1660 of 2013· [2014] KEELRC 1145 (KLR)

Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd [2014] KEELRC 1145 (KLR)

Industrial Court of Kenya
9 July 2014
MMM. Mbaru
5,327 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court upheld Barclays' summary dismissal of an employee who stayed off work without notifying the employer of illness or attending his disciplinary hearing.

What this practically means

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Executive summary

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BIFU (Kenya) claimed on behalf of grievant Silas Koome Mwirebua, a Barclays Bank of Kenya employee dismissed summarily on 12th July 2012 for constant absenteeism, that the dismissal was unlawful and unfair because the grievant suffered undiagnosed acute depression and was dismissed while on sick leave, despite medical recommendations that he was fit to resume duty. The claimant sought reinstatement, payment of allowances and compensation. The respondent defended the dismissal as gross misconduct under section 44(4)(e) of the Employment Act, contending the grievant was a habitual absentee who absconded duty without communication, failed to complete the employer-funded wellness counselling programme, and failed to attend his disciplinary hearing; the respondent also counter-claimed for outstanding personal loan and Barclays card debts of Kshs.968,569.08. The court framed three issues: unfairness of the summary dismissal, remedy, and the counter-claim. It held the grievant had a mandatory duty to notify the employer of sickness and produce medical certificates, which he failed to do; the employer complied with sections 30, 34 and 41 of the Employment Act by accommodating him, funding wellness support and later treatment by Dr Frank Njenga, and inviting him to a hearing. Unexplained absence amounted to desertion justifying summary dismissal, and the depression diagnosis post-dated the dismissal. The claim was dismissed in its entirety; judgment was entered for the respondent on the admitted counter-claim in the sum of Kshs.968,569.08, with each party bearing their own costs.

Key legal issues

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01

Whether the respondent was aware of the grievant's medical condition (acute depression) at the time of summary dismissal

Holding

The respondent had no knowledge or reason to know of the grievant's condition; the grievant failed to notify or produce medical certificates, and the diagnosis came after dismissal

Reasoning

The court found the grievant was not sick in the conventional sense and was accommodated by his line manager without medical proof. He failed to complete the wellness sessions, chose his own doctors, and the diagnosis of acute depression by Dr Okonji was issued after the dismissal. The employer complied with sections 30 and 34 of the Employment Act by offering wellness support and later funded treatment.

p. 7
02

Whether the dismissal breached section 41 of the Employment Act (hearing)

Holding

No breach; the grievant failed to attend the disciplinary hearing without justifiable cause after acknowledging the invitation

Reasoning

The grievant was invited to a disciplinary hearing on 27th June 2012, acknowledged receipt of the invitation, but did not attend and did not communicate why. The respondent could not be faulted for proceeding to dismiss under section 44(4)(e) for absconding duty.

p. 8
03

Whether the respondent's counter-claim for the personal loan and Barclays card debt should be granted

Holding

Granted in full; the amounts were admitted by the grievant, only his capacity to pay was in issue

Reasoning

The counter-claim of Kshs. 938,802.20 for the personal loan and Kshs. 29,766.88 for the Barclays card debt was not materially challenged. The grievant admitted the debt was due but pleaded inability to pay due to unemployment, seeking reinstatement to repay. The court entered judgment for the respondent.

p. 5

Legal principles established

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  • An employee absent due to sickness has a mandatory duty to notify the employer as soon as reasonably practicable and produce a medical certificate from a qualified medical practitioner
  • Absence from work without justifiable reason, permission, authorisation or notice to the employer constitutes desertion and is a ground for summary dismissal under section 44 of the Employment Act

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.Judgment entered for the respondent on the counter-claim in the sum of Kshs. 968,569.08
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 10(3)(a)(ii)
  • Employment Actsection 30
  • Employment Actsection 34
  • Employment Actsection 41
  • Employment Actsection 44(4)(e)

Cases cited (1)

  • SACWU v Dyasi
    [2001] 7 BLLR 731 (LAC)
Jurisdiction invoked
Original jurisdiction of the Industrial Court over employment and labour disputes (labour relations law); claim filed following an unresolved dispute certificate issued by the Minister under the Labour Relations Act process

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd [2014] KEELRC 1145 (KLR)", Case Analysis (2014). Cause No. 1660 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1145/eng@2014-07-09

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