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ELRCDismissedCause No. 242 of 2011· [2015] KEELRC 1164 (KLR)

David K Cheruiyot v Barclays Bank of keny Limited [2015] KEELRC 1164 (KLR)

Employment and Labour Relations Court
20 April 2015
HWHellen S. Wasilwa
1,492 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by Barclays Bank of Kenya in 1994 and promoted to Section Head in 2001, was suspended on 21/7/2005 on half pay for 30 days following alleged irregularities, namely failure to credit a client's account and possession of fake currency notes in his till. He sued seeking a declaration that his suspension was illegal, unconditional reinstatement, or in the alternative terminal benefits and payments totalling Kshs. 2,817,752/=. The Respondent, through the Federation of Kenya Employers, contended that the day after suspension the Claimant resigned by letter, that the resignation was not accepted pending investigations, that he was warned to report weekly and face discipline, and that he was ultimately dismissed on 11/8/2005 for desertion, relying on Section 17 of the repealed Employment Act. The court framed three issues: whether the Claimant resigned or was terminated; if terminated, whether it was for valid reasons with due process; and whether he was entitled to the reliefs sought. The court held that the Claimant resigned by his letter of 22/7/2005, which was stamped as received by the Respondent, and that the employer could not reject a resignation or force an employee to remain in employment, as this would breach his freedom under Article 36 of the Constitution. Any purported dismissal after resignation was null and void. Having chosen to resign, the Claimant could not claim dues for wrongful termination. Although limitation was not pleaded, the court also held the suit, filed in 2011 over a 2005 cause of action, was time barred without leave. The claim was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Claimant resigned or was terminated

Holding

The Claimant resigned on 22/7/2005 by letter received and stamped by the Respondent; the employer's purported rejection of the resignation and subsequent dismissal were of no effect.

Reasoning

Both parties agreed the Claimant was suspended on 21/7/2005. The next day the Claimant wrote a resignation letter, stamped received by the head office and Kitale branch, which was not denied. The contract allowed termination on one month's notice under the CBA, an option the Claimant exercised notwithstanding ongoing investigations. The Respondent nevertheless continued treating him as an employee and dismissed him for desertion, which the court held was null and void once resignation had occurred.

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02

Entitlement to the reliefs sought

Holding

The Claimant was not entitled to any of the reliefs sought because he chose to resign and, in any event, the claim was filed out of time without leave.

Reasoning

A resignation forecloses claims for wrongful termination dues; the court noted the limitation point was not pleaded by the Respondent but went on to hold sua sponte that the claim, arising in 2005 and filed in 2011, was time barred without leave of court. Consequently, the prayers for reinstatement, terminal benefits and Kshs. 2,817,752/= all failed and the suit was dismissed with costs.

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Legal principles established

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  • Once an employee has validly resigned, the employer cannot force him to remain in employment; any purported dismissal thereafter is a nullity.
  • Forcing an employee to remain in employment against his wishes would breach his freedom of association under Article 36 of the Constitution.

Court orders

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  1. 1.The claim by the Claimant is dismissed with costs to the Respondent.

Authorities

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Legislation

  • Banking ActCap 488 Laws of Kenya
  • Constitution of KenyaArticle 36
  • Employment Act (repealed)Section 17
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Industrial Court (now ELRC) cause proceedings

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, "David K Cheruiyot v Barclays Bank of keny Limited [2015] KEELRC 1164 (KLR)", Case Analysis (2015). Cause No. 242 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1164/eng@2015-04-20

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