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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 2612 (KLR)

Oteri v Barclays Bank of Kenya (Cause 2156 of 2014) [2018] KEELRC 2612 (KLR)

Employment and Labour Relations Court
13 July 2018
2,489 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, employed by the respondent bank in October 2007 as a cashier cum custodian, was terminated on 18th February 2014 following fraudulent transactions at the respondent's branch between September and October 2013, in which approximately Kshs 950,000/= was fraudulently withdrawn from two related accounts. The respondent alleged the claimant, as acting custodian and supervisor of the cashiers involved, authorised three fraudulent fund transfers without verifying vouchers and failed to adhere to call-over procedures. The claimant contended her termination was wrongful and unfair, that she was not directly implicated in the fraud, and that the disciplinary process was unfair and unprocedural. The court found the fraudulent transactions were not disputed, and that the claimant's failure to exercise supervisory control over cashiers and to cross-check transactions would have been sufficient reason for termination. However, the court found that the disciplinary hearing only addressed the fraudulent fund transfers from Kevin Nyakundi's account to the Ngong Parish account and the failure to adhere to call-over procedures, while the termination letter cited the more serious disputed counter withdrawals from the Kuka Investments and Kunste Ltd accounts, which were never mentioned at the disciplinary hearing. The court held it was contrary to the Employment Act and rules of natural justice to terminate an employee for reasons different from those put to her at a disciplinary hearing. The termination was found unfair in both reason and procedure, and the claimant was awarded twelve months' salary as compensation, plus costs and interest.

Key legal issues

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01

Whether termination for reasons different from the disciplinary charges was unfair

Holding

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.

Reasoning

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.

p. 5
02

Whether the respondent had valid grounds to terminate the claimant

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Award of twelve months' salary as compensation for unfair termination, being Kshs 1,188,594
  2. 2.The claimant to have costs of the suit
  3. 3.The decretal sum to be subject to statutory deductions and taxes
  4. 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

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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, "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.