Banking, Insurance & Finance Union (KENYA) v National Bank of Kenya Limited [2015] KEELRC 379 (KLR)
The bottom line
#Kenya's Employment Court stopped a bank from forcing six unionised staff into early retirement, ruling that employer HR policies cannot override the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should grant interim orders restraining early-retirement terminations
Yes - the grievants' employment was secured pending resolution of the dispute reported to the Minister, since early retirement effected through the HR manual would amount to termination regulated by the Employment Act and an unfair labour practice if applied unilaterally.
The grievants had been issued notices of early retirement under clause 9.4.1 of the respondent's HR manual, but the CBA contained no early retirement provision. Termination under the Employment Act requires compliance with sections 41, 42, 43 and 44. A subsidiary policy cannot oust statutory protections, and imposing the manual's discretion suo motto defeats collective bargaining. Pending the dispute reported to the Minister, fairness required securing employment.
Applicability of contractual injunction principles to employment disputes
General principles (Giella v Cassman Brown) do not automatically apply in labour disputes; regard must be had to fair labour practice and the chances of success at trial.
The court held that injunctions in employment matters must consider whether refusal would negate the trial process and defeat the purpose of coming to court, per Elizabeth Washeke v Airtel and Anne Kinyua. Even though the Notice of Motion was imperfectly worded, the supporting affidavit clearly set out the grounds, and defective framing should not defeat the reliefs sought.
Legal principles established
#- Subsidiary policy provisions in a contract of employment cannot oust statutory provisions; where there is conflict, the subsidiary provision gives way to the parent legislation.
- Where employees are covered by a CBA and recognition agreement, any termination of employment must be in terms agreed upon between the union and the employer; unilateral application of a human resource manual discretion amounts to an unfair labour practice.
- General contractual injunction principles apply in employment disputes only with caution and regard to fair labour practice.
Court orders
#- 1.The Respondent restrained from terminating the services and/or employment of the six grievants (Evanson Maina Wachira, Miriam Mzee Mohamed, Mary Adhiambo Ochieng, Francis Alutsimbi Akonya, Richard Muhuyu Gikonyo and Allan Munzatsi Kaisha) pending the hearing and determination of the suit
- 2.Such orders to remain in force unless the grievants are terminated or terminate their employment for other separate and/or good cause
- 3.Costs shall be in the cause
- Jurisdiction invoked
- Section 12(4) of the Industrial Court Act [Employment and Labour Relations Court Act] and section 74 of the Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance & Finance Union (KENYA) v National Bank of Kenya Limited [2015] KEELRC 379 (KLR)", Case Analysis (2015). Not stated in judgment (Notice of Motion dated 24th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/379/eng@2015-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.