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ELRCDismissedNot stated in judgment· [2016] KEELRC 644 (KLR)

Daniel Waweru Kinyua v Nairobi City Water & Sewerage Company Limited (Cause 1959 of 2011) (Employment and Labour) [2016] KEELRC 644 (KLR)

Employment and Labour Relations Court
23 September 2016
ANAbuodha Jorum Nelson
1,137 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed an employer can fairly dismiss an employee whose confidential work password was used in fraud, even without proof he benefited.

What this practically means

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Executive summary

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The claimant, employed as a clerical officer from 27th October 1983, was suspended on 5th September 2008 after being implicated in corrupt dealings and given 21 days to respond, then summarily dismissed on 5th February 2009 on account of loss of trust. He alleged the dismissal was high-handed, that his defence (that his password may have been stolen and used by a colleague) was ignored, and that he was denied the fair hearing contemplated by section 41 of the Employment Act. The respondent maintained he was dismissed for grave misconduct, dishonesty, fraud and corruption, having been accorded an opportunity to defend himself before a disciplinary committee, and that terminal dues of Kshs.310,297.20 were paid under the applicable Collective Bargaining Agreement. In evidence, the claimant conceded that passwords were confidential and personal, and that his password had been used to fraudulently adjust account number 117104601 to a credit balance of Kshs.86,024/25. The respondent's witness admitted there was no evidence the claimant solicited or received bribes, and the dismissal letter did not mention bribery. The court held that safeguarding one's password was the claimant's responsibility, and that permitting or suffering it to be accessed by others amounted to negligence regardless of whether he personally benefited from the fraud, giving the respondent a good reason to dismiss. The court was further persuaded from the claimant's own testimony that due process was followed. The claim was found without merit and dismissed with costs.

Key legal issues

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01

Validity of reason for summary dismissal

Holding

The respondent had a good reason to dismiss the claimant because his password was used to fraudulently adjust a customer account, and safeguarding the password was his responsibility

Reasoning

It was common ground that passwords were confidential and personal and could not be shared. The claimant admitted his password was used to make the fraudulent adjustment to account 117104601. Permitting one's password to be accessed by another constitutes negligence, irrespective of whether the employee personally benefited from the fraud. The employer therefore discharged its burden of proving a valid reason for termination under the Employment Act.

p. 3
02

Procedural fairness under section 41 of the Employment Act

Holding

Due process was followed; the claimant was given a show cause letter and attended a disciplinary hearing before dismissal

Reasoning

The claimant conceded in cross-examination that he was issued with a show cause letter, suspended, and invited to appear before the disciplinary committee, where he explained his position, and received a dismissal letter thereafter. On the basis of the claimant's own testimony, the court was satisfied the procedure under section 41 of the Employment Act was complied with.

p. 3

Legal principles established

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  • An employee who allows his confidential password to be accessed by others is negligent and the employer has a valid reason for dismissal even if the employee did not benefit from the resulting fraud

Court orders

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  1. 1.The claim is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment dispute; specific constitutional provision not cited in the judgment)

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, "Daniel Waweru Kinyua v Nairobi City Water & Sewerage Company Limited (Cause 1959 of 2011)  (Employment and Labour) [2016] KEELRC 644 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/644/eng@2016-09-23

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