Banking, Insurance and Finance Union (K) v Bank of India [2018] KEELRC 403 (KLR)
The bottom line
#Kenya's Employment Court dismissed two bankers' unfair dismissal claim because the older, weaker law applied when they were fired in 2005, not today's protections.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the grievants on 27 April 2005 was wrongful
The dismissal was not wrongful; the applicable law was the repealed Employment Act Cap 226 and Trade Disputes Act Cap 234, under which summary dismissal on reasonable and sufficient grounds of suspicion of a criminal offence was permitted without a disciplinary hearing.
The cause of action arose on 27 April 2005, so the Employment Act 2007 did not apply retrospectively. Section 17(g) of Cap 226 permitted summary dismissal on reasonable and sufficient grounds of suspicion of a criminal offence against the employer. The grievants had been charged in Criminal Case No. 666 of 2005, constituting such grounds. The repealed Act and the contracts of employment imposed no duty to observe natural justice before dismissal, and their acquittal came after dismissal.
Whether the Claimants are entitled to the reliefs sought
No. Having failed to prove wrongful dismissal, no reinstatement or compensation is available; the additional prayers introduced in submissions are also dismissed as unpleaded.
Under Section 15 of the Trade Disputes Act, reinstatement or compensation is only available where the court determines an employee was wrongfully dismissed. That threshold was not met. Reinstatement was in any event impractical given the grievants' ages (48 and 50 at hearing). The court also held that a party is bound by its pleadings and refused to entertain new prayers introduced only in submissions.
Legal principles established
#- The cause of action for wrongful/unfair termination arises on the date of termination as communicated by the dismissal letter, and the law applicable is that in force at that date.
- Under the repealed Employment Act Cap 226, an employer could summarily dismiss an employee on reasonable and sufficient grounds of suspicion of having committed a criminal offence against the employer, without a disciplinary hearing.
Court orders
#- 1.The new prayers introduced in the Claimant's submissions are dismissed as parties are bound by their pleadings.
- 2.The claim is dismissed with no orders for costs.
- Jurisdiction invoked
- Industrial Court jurisdiction over trade disputes under the Trade Disputes Act Cap 234 (dispute referred before commencement of the Labour Relations Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance and Finance Union (K) v Bank of India [2018] KEELRC 403 (KLR)", Case Analysis (2018). Memorandum of Claim (grievants Samuel Mwangi Kanubi and Moses Nandwa Sharon). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/403/eng@2018-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.