Banking Insurance and Finance Union (Kenya) v Consolidated Bank of Kenya Limited [2018] KEELRC 2156 (KLR)
The bottom line
#A Kenyan court scrapped flawed disciplinary hearings against bank staff but kept them suspended, ordering fresh hearings that must include their union.
What this practically means
#Executive summary
#Key legal issues
#Whether the disciplinary process was procedurally flawed for want of union representation
Yes - the employees were not given the option of union/shop steward representation and the union was not copied with the hearing letters, contrary to the Recognition Agreement, the HR Manual and Section 41 of the Employment Act
The Recognition Agreement, the respondent's HR Policies and Procedure Manual and Section 41 of the Employment Act all permit representation by a union official. The hearing letters only offered accompaniment by a work colleague and were not copied to the union. The court agreed with the applicant on this point and found the process did not meet the required procedure.
Whether there was valid reason to take disciplinary action against the employees
Yes - massive fraud was established through the accounts, warranting disciplinary action despite possible differing levels of individual culpability
Investigations established that 813 cheques worth Kshs.180,129,913.25 were stolen and diverted through the bank, with total losses of Kshs.254,683,176.50. The grievants handled the accounts. Though culpability may vary and some may be innocent, determining each employee's responsibility is the employer's duty through disciplinary proceedings.
Whether the flawed process justified stopping the disciplinary process and reinstating the employees
No - the remedy was to set aside the defective hearings and order fresh hearings with union involvement, not to halt the process
Citing Rebecca Ann Maina, the court held it should intervene to put things right rather than stop the process. Setting aside the hearings and ordering fresh ones with the union involved corrects the procedural defect while preserving the employer's managerial prerogative to discipline.
Legal principles established
#- The court has jurisdiction to intervene in a disciplinary process but only in very exceptional cases where compelling reasons are shown
- Courts should not stop a disciplinary process altogether but intervene to put things right where the process is flawed
- An employer has the right to discipline employees; courts should not intervene unless the process compromises fair hearing or departs from laid down procedure
Court orders
#- 1.Set aside the disciplinary hearings held in respect of the 15 members of the applicant
- 2.Ordered the respondent to carry out fresh disciplinary hearings involving the applicant (union)
- 3.Employees to remain on suspension until the respondent makes a determination on their disciplinary cases
- 4.Orders to affect only grievants who are members of the applicant; hearings involving non-union members not affected
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance and Finance Union (Kenya) v Consolidated Bank of Kenya Limited [2018] KEELRC 2156 (KLR)", Case Analysis (2018). Cause No. 276 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2156/eng@2018-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.