Banking, Insurance & Finance Union (Kenya) v Co-operative Bank of Kenya Ltd [2015] KEELRC 856 (KLR)
The bottom line
#The Industrial Court refused Co-operative Bank's attempt to undo a re-engagement order because it had already re-hired the dismissed employees without seeking a stay first.
What this practically means
#Executive summary
#Key legal issues
#Threshold for review under Section 16 of the Industrial Court Act and Rule 32 of the Industrial Court (Procedure) Rules
The application met the threshold for review, but review was ultimately refused on the merits.
The applicant relied on Rule 32(1)(c) and (e), alleging the judgment breached Sections 49(4)(c) and (d) of the Employment Act and invoking sufficient reasons. The court accepted that the application was properly within the review jurisdiction since it alleged a breach of written law and sufficient grounds, but this only opened the door; the merits determined the outcome.
Whether the court had jurisdiction to order re-engagement more than three years after termination
The court had jurisdiction; the three-year limit applies to reinstatement, not re-engagement.
Section 12(3)(vii) of the Industrial Court Act caps reinstatement orders at three years from dismissal, but re-engagement is a different remedy under Section 49(3) of the Employment Act, where the employee is engaged afresh on similar terms. The statutory cap therefore does not apply to re-engagement, and the want-of-jurisdiction argument founded on Owners of Motor Vessel 'Lilian S' was misplaced.
Whether loss of trust and confidence and impracticability under Section 49(4)(c) and (d) warranted review
No; the judgment had already found no proven breach of trust and confidence, and the servitude argument failed.
The prior judgment made a specific finding that the employer failed to prove breach of trust and confidence. The bank is a large organization; the grievants did not work in close proximity with any person whose charges they faced, so reinstatement would not cast anyone into servitude, per Telkom Kenya Ltd v Paul Ngotwa. Kenya Airways was distinguishable because it involved redundancy of many employees, not misconduct dismissals.
Whether the applicant was entitled to have the re-engagement order substituted with monetary damages
No; compliance had already occurred and damages were neither prayed for nor evidenced.
The grievants had been re-engaged with effect from 1st April 2014, before the review application was filed, and had benefited from the CBA salary review. Granting the application would effect a fresh termination. Damages could not be awarded because neither party had pleaded or proved them, and no stay of the re-engagement order had been sought.
Legal principles established
#- Re-engagement and reinstatement are distinct remedies; the three-year limit in Section 12(3)(vii) of the Industrial Court Act applies to reinstatement only, not to re-engagement
- An employer that complies with a re-engagement order without first obtaining a stay cannot thereafter seek review to undo the compliance
Court orders
#- 1.Application for review of judgment dismissed
- 2.Costs to the respondent (claimant)
- Jurisdiction invoked
- Section 16 of the Industrial Court Act 2011 and Rule 32 of the Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance & Finance Union (Kenya) v Co-operative Bank of Kenya Ltd [2015] KEELRC 856 (KLR)", Case Analysis (2015). Notice of Motion dated 9th June 2014 (arising from judgment delivered 10th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/856/eng@2015-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.