Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment (Memorandum of Claim dated 5th October 2012)· [2018] KEELRC 366 (KLR)

Banking Insurance and Finance Union (Kenya) v Co-operative Bank of Kenya Limited [2018] KEELRC 366 (KLR)

Employment and Labour Relations Court
7 December 2018
MOMaureen Onyango
2,182 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

The Employment Court upheld Co-operative Bank's dismissal of an employee for fraud and ordered him to repay Kshs.169,000.

What this practically means

#

Executive summary

#
The Claimant Union, on behalf of grievant Michael Ongoro, sued the Co-operative Bank of Kenya alleging wrongful dismissal following termination on 29th June 2011. The grievant had been issued a show cause letter in 2008 over a misposting of Kshs.194,000 into a customer's account at the Kisumu Branch, received a warning, and was later issued a further show cause and invited to a disciplinary hearing on 17th June 2011, after which he was dismissed. The Claimant sought reinstatement, pecuniary loss in salaries and allowances, and costs. The Respondent filed a Reply and Counterclaim, asserting the dismissal followed due process and investigations, and counterclaimed for refund of the misposted funds. RW1, the Head of Security, testified that his investigation established fraud, the customer confirming the grievant expected Kshs.150,000 from the withdrawal. RW2, the Employee Relations Manager, testified the grievant received a fair hearing with the right to accompaniment and appeal, which he did not exercise. The court framed three issues: validity of the termination procedurally and substantively, entitlement to reliefs, and the counterclaim. Applying sections 41, 43 and 45 of the Employment Act, the court found valid reason for termination as the grievant admitted the misposting and the evidence of fraud was uncontroverted, and that the procedure was fair. Reinstatement and pecuniary loss were refused. The grievant, having refunded Kshs.25,000, was held liable for the balance of Kshs.169,000 on the counterclaim, which was undefended. The claim was dismissed with costs and judgment entered for the Respondent for Kshs.169,000 with costs.

Key legal issues

#
01

Validity of termination - substantive reason

Holding

There was valid reason for termination: the grievant admitted the misposting and evidence of fraud was not controverted

Reasoning

The grievant admitted debiting the wrong account with Kshs.194,000. The customer whose account received the money confirmed knowing the grievant and that he expected Kshs.150,000 from the withdrawal. RW1's investigation report recommended disciplinary action for fraud. The grievant produced no evidence to controvert this, and a prior warning did not bar later discipline as investigations were requested afresh in April 2011.

p. 4
02

Procedural fairness of termination

Holding

Procedure was fair: grievant was informed of charges, granted a disciplinary hearing, allowed accompaniment, to submit evidence and to appeal

Reasoning

The invitation letter allowed the grievant to come with a member of staff; minutes of the hearing were produced in court. Though the grievant claimed he attended alone, the court accepted RW2's evidence that he was accompanied by a colleague and given an opportunity to appeal, which he did not exercise. Reliance on section 41 and 43 of the Employment Act.

p. 4
03

Respondent's counterclaim for refund of misposted funds

Holding

Grievant liable to refund Kshs.169,000, being the balance after his refund of Kshs.25,000

Reasoning

The Claimant filed no defence to the counterclaim. The grievant admitted the improper debiting of the customer's account and refunded Kshs.25,000 as shown in deposit slips. The overdrawn amount remained unpaid, so judgment for the balance of Kshs.169,000 was entered for the Respondent.

p. 4

Legal principles established

#
  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • A tribunal must not substitute its own views for those of the employer but ask whether a reasonable employer could have decided to dismiss on those facts
  • Reinstatement is a discretionary remedy, not an automatic right of an employee

Court orders

#
  1. 1.Dismissal of the Claimant's claim
  2. 2.Judgment entered for the Respondent against the grievant in the sum of Kshs.169,000
  3. 3.Costs of the suit to the Respondent

Authorities

#

Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(1) and (2)
  • Banking ActNot specified
  • Constitution of KenyaArticle 41

Cases cited (9)

  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) eKLR
  • CFC Stanbic Bank Limited Versus Danson Mwakuwona
    Mombasa Civil Appeal No. 3 of 2014 (2015) eKLR
  • Earl Versus Slater & Whealer (Airlyne) Limited
    (1973) 1 All ER 145
  • Kenya Airways Limited Versus Allied Workers Union Kenya & 3 Others
    (2014) eKLR
  • Kenya Power and Lighting Company Limited Versus Aggrey Lukorito Wasike
    (2017) eKLR
  • Barclays Bank of Kenya Limited & Another Versus Gladys Muthoni & 20 Others
    (2018) eKLR
  • Abraham Gumba Versus Keny Medical Supplies Authority
    (2014) eKLR
  • Banking Insurance and Finance Union versus Co-operative Bank
    Cause Number 213 of 2015
  • Banking Insurance Finance Union Versus Co-operative Bank
    Cause Number 2071 of 2012
Jurisdiction invoked
Original jurisdiction under the Employment Act and Labour Relations Act (Article 41 constitutional rights invoked by Claimant); not expressly stated

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Banking Insurance and Finance Union (Kenya) v Co-operative Bank of Kenya Limited [2018] KEELRC 366 (KLR)", Case Analysis (2018). Not stated in judgment (Memorandum of Claim dated 5th October 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/366/eng@2018-12-07

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