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ELRCPartially AllowedCause No 1450 of 2013· [2015] KEELRC 527 (KLR)

Esther Wambui Ndua v National Bank of Kenya [2015] KEELRC 527 (KLR)

Employment and Labour Relations Court
23 September 2015
2,364 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan bank won on why it fired an employee but lost because it suspended her for seven months and never gave her a proper disciplinary hearing.

What this practically means

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Executive summary

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The Claimant, a clerical employee of National Bank of Kenya deployed at the Kenyatta University Agency, challenged the termination of her employment as unlawful and unfair. The termination followed her verification of signature on two large customer withdrawals in April 2011, after which she was suspended on half pay in September 2011 and dismissed in April 2012 on grounds of loss of confidence. The Respondent contended that the Claimant was implicated in fraudulent dealings and was accorded an opportunity to explain herself during investigations. The Court framed three issues: validity of the reason for termination, fairness of the procedure, and entitlement to remedies. On the first issue, the Court found a valid reason, holding that the Claimant ought to have exercised more care given the amounts involved, the short interval between the transactions, and the Agency setting, and noting there was no corroboration of her claim to have called for a specimen card. On procedure, however, the Court held that the seven-month suspension without extension or explanation was unlawful and that meetings with investigators and recorded statements did not constitute the disciplinary hearing mandated by Section 41 of the Employment Act, 2007, rendering the termination procedurally unfair. The leave pay and leave allowance claims were abandoned at trial. Weighing the factors in Section 49(4), including the valid reason and the Respondent's procedural failures, the Court awarded the Claimant six months' salary (Kshs.420,030.00) in compensation, plus costs, subject to statutory deductions and interest at court rates from the date of the award.

Key legal issues

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01

Whether the Respondent had a valid reason for termination

Holding

Yes - the Claimant ought to have exercised more care in handling large withdrawals from an Agency, and the Respondent had a valid reason.

Reasoning

The Court noted the discrepancy between the suspension letter (fraudulent unsecured personal loans at Ruiru Branch) and the termination letter (loss of confidence over signature verification). Considering the amounts involved, the short lapse between transactions, and that withdrawals were made at an Agency rather than a full branch, the Court held that the Claimant failed to prove she called for a specimen card and should have exercised greater care.

p. 4
02

Whether the Respondent observed fair procedure

Holding

No - the seven-month suspension without extension or explanation was unlawful, and investigation interviews did not constitute a Section 41 disciplinary hearing.

Reasoning

The Claimant remained on suspension for seven months contrary to the CBA's 30-day limit with no evidence of extension, which marred any disciplinary process. Further, meetings with investigators and recorded statements are distinct from a disciplinary process triggered by a show cause notice; the Respondent failed to accord the Claimant an opportunity to be heard as required by Section 41, rendering the termination procedurally unfair.

p. 5
03

Whether the Claimant is entitled to the remedies sought

Holding

Partially - leave pay and allowance claims were abandoned; compensation awarded at 6 months' salary instead of the 12 months claimed.

Reasoning

Under Section 49(4) of the Employment Act the Court weighed the finding of a valid reason and the Claimant's length of service against the Respondent's conduct in keeping her on unlawful suspension and denying her a hearing, concluding that six months' salary was appropriate compensation.

p. 5

Legal principles established

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  • A prolonged suspension without explanation acquires the character of a disciplinary action meted out without due process
  • A discussion with an investigating team or recording of a statement does not qualify as a disciplinary process under Section 41 of the Employment Act
  • Employers must clearly notify the employee when investigation ends and a disciplinary process begins
  • The banker-employee relationship demands utmost prudence, trust and good faith

Court orders

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  1. 1.Award to the Claimant of Kshs.420,030.00 being six (6) months' salary in compensation for unfair termination of employment
  2. 2.Award of the costs of the case to the Claimant
  3. 3.Award subject to statutory deductions and to attract interest at court rates from the date of the award until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 49(4)
  • Collective Bargaining Agreement covering Section Heads, Clerical, Technical and Subordinate StaffClause A5(c)(i) and Clause A5(d)

Cases cited (3)

  • Moses Chavangi Vs Barclays Bank of Kenya Ltd
    Cause No. 694 of 2010
  • Banking Insurance & Finance Union Vs Post Bank Ltd
    [2013] eKLR
  • Rashid Jeneby v Prime Bank Limited
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 45 and 49(4) applied)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Esther Wambui Ndua v National Bank of Kenya [2015] KEELRC 527 (KLR)", Case Analysis (2015). Cause No 1450 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/527/eng@2015-09-23

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