Banking, Insurance & Finance Union (Kenya) v Co-Operative Bank Of Kenya Ltd [2015] KEELRC 1051 (KLR)
The bottom line
#A Kenyan court reinstated a bank clerk who was fired after reporting a colleague's cash theft, ruling his dismissal was unfair.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The dismissal was procedurally unfair: the grievant was not given the choice of his representative at the disciplinary hearing and the process was a sham.
Section 41 of the Employment Act entitles an employee to have another employee or a shop floor union representative of his choice present during the explanation of reasons for termination. The right of choice belongs to the employee and cannot be exercised by the employer for expediency. The grievant was denied time to consult a union representative of his choice. Once this right is interfered with, the resulting deliberations and decisions are subject to challenge. The court found the entire process of suspension, show cause and hearing to be a sham.
Substantive fairness and validity of the reasons for dismissal
The reasons for dismissal were not justified; the dismissal was substantively unfair.
Sections 43 and 45 of the Employment Act require the employer to give valid and fair reasons for termination. The respondent's records were inconsistent: the suspension letter cited a shortage of Kshs.531,000.00 while the show cause letter introduced Kshs.636,000.00 without explanation. The grievant reported the shortage on 11th December 2012 and the co-custodian repaid the money by 17th December 2012. The respondent failed to produce audit or financial records or call key witnesses (the operations manager and the co-custodian) to justify the dismissal.
The respondent's counter-claim for Kshs.636,000.00
The counter-claim was dismissed as unsupported by evidence and law.
The amount of Kshs.636,000.00 was not shown to have been arrived at by evidence and had no justification in law or fact. The claim that the grievant exposed the bank to loss was not demonstrated; on the evidence the grievant reported the loss and the funds were fully recovered from the co-custodian Jacob, who was terminated after paying the full amount. The loan application by the grievant predated the shortage and no evidence linked it to the loss. The court declined to sanction the victimisation of a whistle-blower by confirming the counter-claim.
Remedy - reinstatement
Reinstatement was granted without loss of benefits or seniority.
Having found both substantive and procedural unfairness, the court found no reason to withhold reinstatement, considering section 49(4) of the Employment Act, the respondent's conduct in refusing the conciliator's recommendation, the grievant's clean disciplinary record and tender age and career prospects, and the respondent's national presence permitting deployment to another branch.
Legal principles established
#- Under section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination or wrongful dismissal, while the employer bears the burden of justifying the grounds for termination.
- The choice of a representative at a disciplinary hearing belongs to the employee, and an employer cannot make that choice for the employee; interfering with it renders the process subject to challenge.
- Where the employee discharges his evidential burden of showing he reported a shortage, the burden shifts to the employer to demonstrate a valid and just cause, including by producing financial and audit records in its custody.
Court orders
#- 1.The counter-claim is dismissed
- 2.A declaration that the dismissal of the Grievant was unfair and is set aside
- 3.The Grievant, Samuel Chege Njoroge, is reinstated to his former position as Graduate Clerk/ATM Custodian without loss of employment benefits or seniority
- 4.The Respondent to pay the Grievant all salaries and allowances due from 21st January 2013 to 19th May 2015
- 5.Amounts payable to be paid on or before 31st May 2015
- 6.The Grievant to report to the Respondent's Managing Director/Chief Executive Officer on 2nd June 2015 for deployment in any branch other than Mariakani Branch
- 7.The Grievant to remain in the Respondent's employ, the past record regarding this case removed unless otherwise lawfully removed for any other cause
- 8.The Respondent to pay costs to the Claimant
- Jurisdiction invoked
- Reference to the Minister under the Employment Act; jurisdiction of the Employment and Labour Relations Court over the wrongful dismissal dispute (Article 41 of the Constitution invoked on fair labour relations)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chepkonga v Kenya Airways PLC (Cause E549 of 2023) [2023] KEELRC 2186 (KLR)[2023] KEELRC 2186 (KLR)20 Sept 2023
- Kenny Kinako v Ringier Kenya Limited [2016] KEELRC 1229 (KLR)[2016] KEELRC 1229 (KLR)7 Apr 2016applied
Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance & Finance Union (Kenya) v Co-Operative Bank Of Kenya Ltd [2015] KEELRC 1051 (KLR)", Case Analysis (2015). Cause No. 1982 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1051/eng@2015-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.