Banking, Insurance & Finance Union (Kenya) v Cooperative Bank of Kenya Limited [2018] KEELRC 2374 (KLR)
The bottom line
#A Kenyan court upheld a bank teller's dismissal, ruling that an acquittal in a criminal case does not stop an employer from firing an employee over the same incident.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer had a valid reason for the dismissal under Section 43 of the Employment Act
The employer had a valid reason: the Grievant failed in her duty of care by keeping unposted cash on her counter and failing to raise the alarm on 19th March 2013
The Grievant admitted she did not report the incident of 19th March 2013 to her superiors. She was aware of the Cash and Cash Movement Policy prohibiting keeping cash at the counter without a transaction, and her claim that the policy was generally not followed did not justify flouting it. Had she raised the alarm on 19th March, subsequent losses could have been forestalled. The Court declined to shield her from the consequences of her failure of duty.
Whether the Grievant's acquittal in the criminal case invalidated the dismissal
No; an acquittal in a criminal trial does not bind the employer's disciplinary process
Relying on Rika J's reasoning in James Mugeria Igati and the Court of Appeal in Attorney General v Andrew Maina Githinji, the Court held that the disciplinary process is a private process between employer and employee, distinct from the public criminal process; the standards of proof differ and an acquittal does not bind the employer. The ELRC evaluates workplace disciplinary processes and does not sit on appeal over criminal court decisions.
Whether the disciplinary process complied with Section 41 of the Employment Act and the CBA
Yes; the Grievant was issued a show cause letter, responded, and appeared before a disciplinary panel before dismissal under Clause A5 of the CBA
The Grievant received a show cause letter on 15th April 2013, responded on 18th April 2013, and appeared before the Staff Disciplinary Committee on 9th May 2013 before the summary dismissal of 17th May 2013 pursuant to Clause A5(a) of the CBA. The Court found the process set out under Section 41 of the Employment Act and Clause A5 of the CBA was followed.
Legal principles established
#- The court does not substitute its view for the employer's, but asks whether the employer acted lawfully and reasonably given the facts
- There is no necessary nexus between the verdict in a criminal trial and the findings in an internal disciplinary process on the same facts
- Bankers handle other people's money in a highly sensitive environment and their duty of care must be commensurately high
- The Employment and Labour Relations Court neither sits on appeal over nor is guided by decisions of lower criminal courts
Court orders
#- 1.The entire claim fails and is dismissed
- 2.Each party will bear their own costs
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over the trade dispute reported to the Minister for Labour and referred after failed conciliation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance & Finance Union (Kenya) v Cooperative Bank of Kenya Limited [2018] KEELRC 2374 (KLR)", Case Analysis (2018). Memorandum of Claim dated 13th February 2015, filed 18th February 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2374/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.