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ELRCPartially AllowedCause No. 95 of 2014 (Notice of Motion dated 26th May 2015)· [2015] KEELRC 654 (KLR)

Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd & Kenya Bankers Association [2015] KEELRC 654 (KLR)

Employment and Labour Relations Court
23 July 2015
4,293 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court protected a union witness's job but confirmed employers can still discipline staff for misconduct unrelated to pending court cases.

What this practically means

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Executive summary

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The claimant union, BIFU, moved the Court by Notice of Motion dated 26th May 2015 seeking interim orders restraining the respondent employer from terminating Hillary Mwania Munyalo, its key witness in the main suit (Cause No. 95 of 2014), and eight other unionisable employees; withdrawal and expunging of a final warning letter issued to Munyalo on 19th May 2015, the same day he testified; and a bar on terminations of employees issued with capability notices, warning letters and final warning letters arising from performance development plans. The union argued the warning and dismissals (including that of witness Peter Chege) were victimisation intended to kill the case, contrary to the CBA warning procedure. The respondent opposed, showing Munyalo had been investigated for staff-lending, heard on 14th May 2015 and leniently warned for gross misconduct; it relied on its right to discipline. The Interested Party opted out. The court framed four issues. It held that parties to pending litigation must not interfere with identified or potential witnesses on pain of contempt, and that section 46(h) of the Employment Act renders dismissal for participating in proceedings an unfair labour practice; status quo protection of the witnesses' employment was imperative. However, Munyalo's warning related to a distinct cause of action outside the pleadings, which could not be introduced by application, and the employer's right to discipline for unrelated misconduct was undiminished. The application was allowed only in part: parties to maintain the status quo as to the named employees' employment pending determination, without barring lawful disciplinary action for misconduct outside matters raised in the cause. No express costs order was made.

Key legal issues

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01

Protection of witnesses in employment litigation from intimidation, harassment or victimisation by the employer

Holding

Parties to a pending cause must desist from interfering with identified or potential witnesses; the court will preserve the status quo to protect their employment pending the hearing.

Reasoning

The court reasoned that employment disputes engage a distinct labour morality and the dignity of employees. Section 20(2) of the Employment and Labour Relations Act and the Court Rules presuppose identified witnesses. Interference with them defeats the course of justice and amounts to contempt, and section 46(h) of the Employment Act renders dismissal for participating in proceedings against the employer an unfair labour practice. Status quo orders were therefore imperative to secure testimony free of anxiety or fear.

p. 5
02

Whether the final warning issued to Munyalo was connected to his testimony and could be expunged within this cause

Holding

The warning related to staff-lending, a distinct cause of action outside the pleadings; it could not be attacked within this cause, and any complaint must be filed separately.

Reasoning

Munyalo was investigated for staff-lending between January and March 2015, heard on 14th May 2015 and issued a final warning after his testimony on 19th May 2015. The court found no link between that charge and the victimisation particulars in the claim filed on 29th January 2014. Introducing the new dispute via application contravened procedure; it should be extracted and filed separately. Where such a complaint is used to obstruct testimony, the court's attention may be drawn for directions.

p. 6
03

Employer's right to discipline employees notwithstanding pending litigation

Holding

The employer retains the right to discipline employees for misconduct outside matters raised in the cause; courts should be reluctant to interfere with disciplinary processes unless conducted unfairly.

Reasoning

Following Walter Mocha Ongeri, the court held that it would be futile to involve itself in the day-to-day management of the employment relationship or in disciplinary processes, unless it is established that such a process was commenced or is continuing unfairly. Misconduct must be addressed and work quality cannot be compromised merely because litigation is ongoing; recourse for any procedural unfairness lies in a separate suit.

p. 7

Legal principles established

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  • A party who, knowing of identified or potential witnesses in a pending matter, threatens, intimidates or interferes with them acts to defeat the course of justice and may be liable in contempt.
  • Terminating or disciplining an employee for initiating or participating in legal proceedings against the employer constitutes an unfair labour practice under section 46(h) of the Employment Act.
  • The pendency of a suit and the calling of an employee as a witness does not operate as a permanent bar to lawful disciplinary proceedings for unrelated misconduct.
  • A new and distinct cause of action cannot be introduced through an interlocutory application; it must be pleaded by amendment or filed separately.

Court orders

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  1. 1.Parties to maintain the status quo regarding the employment of Hillary Mwania Munyalo, Andrew Mwaura, Eva Gatwiri Bundi, Japheth Kiprono Kiget, Joseph Musyoka Mboya, Agnes Wanjiku Karuai, Doreen Karimi Murungi and Miriam Wairimu Wanyeki
  2. 2.The said employees' employment shall not be interfered with or in any manner threatened pending the hearing and determination of the matter
  3. 3.The orders shall not operate as a bar to disciplinary action undertaken by the Respondent for any misconduct outside matters raised in the cause
Jurisdiction invoked
Employment and Labour Relations Act, section 20(2) (inherent powers to summon witnesses); Employment Act section 46(h); Employment and Labour Relations Court (Procedure) Rules, Rules 4, 11(1), 14(9) and (10)

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 & Kenya Bankers Association [2015] KEELRC 654 (KLR)", Case Analysis (2015). Cause No. 95 of 2014 (Notice of Motion dated 26th May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/654/eng@2015-07-23

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