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ELRCDismissedCause No 1091 of 2013· [2018] KEELRC 908 (KLR)

Cosmus Mwaniki Kipingazi v Barclays Bank of Kenya Limited [2018] KEELRC 908 (KLR)

Industrial Court (Employment and Labour Relations Court)
19 October 2018
JRJames Rika
823 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 Barclays could lawfully dismiss an employee over fake medical claims because it investigated thoroughly and followed a fair process.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent Bank in March 2010 as a Customer Advisor at Eldoret Branch and later promoted, was alleged to have presented fraudulent medical claims. He was suspended by letter dated 19 October 2012, subjected to a disciplinary hearing on 27 October 2012 at Sirikwa Hotel, and dismissed by letter dated 6 November 2012 on the ground of fraud. He sued seeking a declaration that termination was unfair, damages, reinstatement and costs. The Respondent maintained that investigations into an upsurge of medical claims revealed that the Claimant had submitted false claims alleging treatment at Marie Stopes Kenya, whose doctor denied treating him, and that the Claimant was heard with his Trade Union Representative and offered an appeal hearing which he failed to attend. The Court noted the claim was similar to Industrial Court Cause Number 1616 of 2013, Daniel Omache Ogato v Barclays Bank of Kenya Limited, with identical facts, issues and counsel, and expressed regret that consolidation had not been sought. Following its reasoning in that case, the Court found the Respondent had carried out investigations at depth, that specific providers and doctors denied treating the Claimant, and that the receipts were fraudulent, giving the employer solid justification under Sections 43 and 45 of the Employment Act 2007. Procedure was also found fair under Sections 41 and 45. Emphasising that trust and confidence are cornerstones of the banking relationship, the Court held the Claimant merited neither compensation nor reinstatement. The Claim was rejected in its entirety with no order on costs.

Key legal issues

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01

Substantive justification for termination

Holding

The Respondent had solid justification to terminate the Claimant's contract for fraudulent medical claims.

Reasoning

The Respondent carried out investigations at depth after an unusual upsurge in medical claims. Marie Stopes denied attending to the Claimant, and the doctor alleged to have treated him denied doing so. Receipts relied upon were found to be fraudulent. This satisfied the requirements of Sections 43 and 45 of the Employment Act 2007.

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02

Procedural fairness of the termination

Holding

Procedure was fair under Sections 41 and 45 of the Employment Act.

Reasoning

The decision was preceded by thorough investigations. The Claimant was suspended, asked to respond to specific allegations, notified of the disciplinary hearing at Sirikwa Hotel, and heard with his Trade Union Representative. He lodged an appeal but failed to turn up to prosecute it, and the termination was upheld.

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03

Whether compensation or reinstatement was merited

Holding

The Claimant merited neither compensation nor reinstatement given his complete breach of trust and confidence.

Reasoning

As stated in the related case of Daniel Omache Ogato v Barclays Bank Limited, the employee acted in complete breach of trust and confidence, which are core elements of the banking industry. Reinstatement to an industry where trust carries a high premium was inappropriate, and no compensation for unfair termination was warranted.

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Legal principles established

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  • An employer who establishes that an employee submitted fraudulent claims has solid justification for termination under Sections 43 and 45 of the Employment Act 2007.
  • Trust and confidence are core elements in the banking industry and cornerstones of the bank-employee relationship; breach disqualifies an employee from compensation or reinstatement.

Court orders

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  1. 1.The Claim is rejected in its entirety
  2. 2.No order on the costs

Authorities

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Legislation

  • Employment ActSections 41, 43 and 45

Cases cited (1)

  • Daniel Omache Ogato v Barclays Bank of Kenya Limited
    Industrial Court at Nairobi, Cause Number 1616 of 2013
Jurisdiction invoked
Jurisdiction as the employment and labour relations court under the Employment Act 2007 (Sections 41, 43 and 45); specific provision not stated in 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, "Cosmus Mwaniki Kipingazi v Barclays Bank of Kenya Limited [2018] KEELRC 908 (KLR)", Case Analysis (2018). Cause No 1091 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/908/eng@2018-10-19

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