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ELRCPartially AllowedCause No 58 of 2014· [2015] KEELRC 684 (KLR)

Charles Ngochi Munyi v Equity Bank Limited [2015] KEELRC 684 (KLR)

Employment and Labour Relations Court
31 July 2015
BOByram Ongaya
2,577 words in judgment
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The bottom line

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A Kenyan court ruled a bank's dismissal of a manager unfair for lack of proven reasons, but denied him any compensation because his own conduct caused the dismissal.

What this practically means

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Executive summary

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The claimant, employed by the respondent bank since 2001 and transferred to Mumias Branch as Business Growth & Development Manager, was dismissed on 31.01.2014 for gross misconduct arising from allegations of sexual harassment made by a young scholar attached to the bank under its Wings to Fly Program. The scholar's statements alleged that the claimant drove her home alone, took her to a hotel, and sexually assaulted her; the claimant admitted driving her home alone but denied the hotel incident and the assault. The court framed two issues: whether the termination was unfair, and whether the claimant was entitled to the remedies prayed for. On procedure, the court found substantial compliance with section 41 of the Employment Act, 2007, holding that the claimant was informed of the allegations, shown the complaint, given a suspension letter, and heard at a disciplinary meeting, with the absence of a chosen representative excusable as no injustice resulted. On substance, the court found that the respondent failed to establish the sexual harassment allegation on a balance of probability, given contradictory dates, the scholar's failure to testify, and incomplete investigations, and therefore the dismissal was unfair for want of a genuine reason under section 43. However, the claimant admitted breaching the respondent's Child Protection Policy by being alone with the scholar in his car and doing things she could have done herself. The court held he wholly contributed to his dismissal and, under section 49(1)(c), was not entitled to compensation. The declaration of unfair termination was granted, but all damages, dividends, mileage and defamation claims failed for want of evidence. The respondent was ordered to pay only 25% of the claimant's costs. Signed, dated and delivered at Nyeri on 31st July, 2015 by Byram Ongaya, Judge.

Key legal issues

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01

Procedural fairness under section 41 of the Employment Act

Holding

The respondent substantially complied with section 41; the absence of a chosen representative occasioned no injustice.

Reasoning

The claimant was informed in detail of the allegations at the 31.12.2013 meeting, shown the written complaint, given the suspension letter, and later heard at the 31.01.2014 meeting. Though he was not accompanied by a person of his choice, no injustice resulted as he was a top manager who put his case effectively; the omission was excusable.

p. 3
02

Validity of the reason for termination under section 43

Holding

Sexual harassment as the reason was not established on a balance of probability; the termination was unfair for want of a valid reason.

Reasoning

The scholar was not cross-examined at the disciplinary hearing and did not testify in court. Both parties gave contradictory dates. The respondent's conclusion that allegations were 'likely to be true' rested on facts that at best remained mere allegations, and the respondent failed to undertake further investigations or an oral hearing despite the gravity of the allegations.

p. 4
03

Compensation under section 49(1)(c) notwithstanding unfair termination

Holding

Damages denied because the claimant's own conduct wholly contributed to the dismissal.

Reasoning

The claimant admitted being alone with the scholar in his private car, driving her home in circumstances not absolutely necessary, and doing things she could have done herself, breaching the Child Protection Policy. Although termination was unfair for want of valid reason, his contribution defeated compensation.

p. 4

Legal principles established

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  • An employer must establish both procedural compliance (section 41) and valid reasons (section 43) for termination; dismissal founded on mere allegations without full investigation is unfair.
  • A claimant's own misconduct contributing to dismissal may defeat compensation under section 49(1)(c) even where termination is declared unfair.

Court orders

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  1. 1.Declaration that the termination of the claimant's employment by the respondent was unfair for want of a valid reason as envisaged under section 43 of the Employment Act, 2007
  2. 2.The respondent to pay 25% of the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 49(1)(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007)

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, "Charles Ngochi Munyi v Equity Bank Limited [2015] KEELRC 684 (KLR)", Case Analysis (2015). Cause No 58 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/684/eng@2015-07-31

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