Oteri v Barclays Bank of Kenya (Cause 2156 of 2014) [2018] KEELRC 2612 (KLR)
The bottom line
#A Kenyan bank's dismissal was ruled unfair because the employee was fired for reasons never raised at her disciplinary hearing, costing it twelve months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether termination for reasons different from the disciplinary charges was unfair
The termination was unfair in both reason and procedure because the claimant was dismissed on the basis of counter withdrawals amounting to Kshs 950,000/= from the Kuka Investments and Kunste Ltd accounts, which were never the subject of the disciplinary hearing, where she was only questioned on the fraudulent fund transfers from Kevin Nyakundi's account to the Ngong Parish account and her failure to adhere to call-over procedures.
The court compared the letter of invitation to the disciplinary hearing with the termination letter. The invitation specifically referenced investigation report 237/2013 concerning authorising three fraudulent fund transfers from Kevin Nyakundi's account to Ngong Parish and failure to adhere to call-over procedures. The termination letter, however, cited the disputed counter withdrawals of Kshs 950,000/= from two related accounts. The issue of those counter withdrawals was not mentioned anywhere in the disciplinary hearing proceedings, nor in the investigations report. The claimant therefore never had an opportunity to defend herself against the more serious allegations used to justify her termination, offending the Employment Act and natural justice.
Whether the respondent had valid grounds to terminate the claimant
Although the court found the respondent's concern over the claimant's failure to cross-check the fraudulent transactions would have been sufficient reason for termination, the process was fatally flawed.
The court found that the respondent did not accuse the claimant of fraud or collusion, but of failure to exercise control as a supervisor over the cashiers under her. The claimant, as acting B2 custodian, authorised three fund transfers from Kevin Nyakundi's account without verifying the actual vouchers, and failed to ensure call-overs of cash withdrawal vouchers were conducted and recorded. The court accepted this constituted sufficient reason for termination, but held the termination unfair because the dismissal ultimately rested on allegations different from those put to the claimant at the disciplinary hearing, denying her a fair chance to respond.
Legal principles established
#- It is contrary to the Employment Act and rules of natural justice to terminate an employee's services for reasons different from the ones such employee was subjected to at a disciplinary hearing and in respect of which such employee never tendered his or her defence.
Court orders
#- 1.Award of twelve months' salary as compensation for unfair termination, being Kshs 1,188,594
- 2.The claimant to have costs of the suit
- 3.The decretal sum to be subject to statutory deductions and taxes
- 4.The decretal sum to attract interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oteri v Barclays Bank of Kenya (Cause 2156 of 2014) [2018] KEELRC 2612 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2612/eng@2018-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.