Francis Kirimi Mungania v Barclays Bank (K) Limited [2018] KEELRC 309 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's employment was unlawfully and unfairly terminated
The termination was lawful and fair; the Respondent proved a valid reason (breach of procedure) and followed fair procedure including notice, hearing and a right of appeal
RW1 testified the reason for termination was failure to follow procedure, not the theft allegation. The Claimant was invited to a disciplinary hearing, informed of his right to be accompanied by a colleague or shop steward, was heard, and had a right of appeal which he never exercised. The disciplinary minutes and termination letter show the issue interrogated was procedure. The Respondent proved its reason as required by section 43 of the Employment Act, and the procedure complied with section 41.
Whether the Court could revisit limitation under section 90 of the Employment Act at submissions stage
No - the limitation issue was res judicata, having been raised and dismissed in a preliminary objection by Nduma J, against which no appeal was lodged
The Respondent raised limitation by Notice of Preliminary Objection filed in 2013. On 4th June 2014 Nduma J dismissed it because it was not a pure point of law, the matter involving disputed facts. The Respondent did not appeal. The court held the issue could only be revisited with ex parte leave, and since parties had ventilated it and a determination was made, it was res judicata and could not be reargued in submissions.
Whether the Claimant was entitled to the reliefs sought
None of the reliefs were granted: notice pay was given or offset against his loan, leave was exhausted, overtime unproved, and pension benefits had been paid
The Claimant admitted at trial he worked 8-hour shifts, conceded he received his pension benefits, and did not query the computation of his dues even though his termination letter indicated he owed the Bank Kshs.1,900,000 which would be offset by his benefits. His failure to seek clarification on computation meant he was content at the time. The claim for forgone years of service is not a remedy under section 49 of the Employment Act.
Legal principles established
#- Once an issue of limitation has been ventilated and determined on a preliminary objection, it is res judicata and cannot be reopened in submissions absent leave
- An employer must not only state but also prove the reasons for termination under section 43 of the Employment Act
- An employee's failure to follow set security procedure that occasions loss to the employer constitutes a valid and fair reason for termination
Court orders
#- 1.The entire claim is dismissed
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the Labour Institutions Act (claim founded on contract of service and the Employment Act; limitation under section 90 of the Employment Act raised)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kirimi Mungania v Barclays Bank (K) Limited [2018] KEELRC 309 (KLR)", Case Analysis (2018). Cause No 1045 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/309/eng@2018-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.