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ELRCDismissedCause No. 255 of 2013 and Cause No. 255B of 2014· [2019] KEELRC 252 (KLR)

Banking Insurance and Finance Union (K) v Ukulima Sacco Society Limited [2019] KEELRC 252 (KLR)

Employment and Labour Relations Court
22 November 2019
MNMathews N. NdumaMOMaureen Onyango
2,828 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant union sued on behalf of three grievants - Peter Musakali, Dickson M. Mwanje and the late Patrick Kipchumba - summarily dismissed by the respondent SACCO, seeking reinstatement, terminal benefits and compensation for unlawful dismissal. The 1st grievant, a senior computer operator later promoted to IT Supervisor, was dismissed on 3rd May 2012 over absenteeism during leave (explained by a hijacking en route from Mombasa) and irregular business transactions with third parties. The 2nd grievant, an accounts assistant, was dismissed on 12th March 2012 over fraudulent and irregular advances, after his initial suspension had been lifted on an undertaking to repay Kshs. 471,250. The 3rd grievant, a driver, was dismissed the same day over an accident along James Gichuru Road while off his designated route, allegedly outside the work ticket, with attendant towing costs of Kshs. 4,000. Only the 1st and 3rd grievants testified (CW1, CW2) together with RW1, Grace Njine, HR and Administration Manager; the 2nd grievant never testified. The court held the respondent had justifiable cause under Sections 43, 44 and 45 of the Employment Act and followed fair procedure under Section 41 and the CBA as to the 1st and 3rd grievants, while the 2nd grievant failed to discharge the burden under Section 47(5) read with Sections 107 and 108 of the Evidence Act. Terminal benefits were found to have been paid in full. The entire claim was dismissed, with each party bearing its own costs.

Key legal issues

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01

Justifiable reason for summary dismissal of the 1st grievant

Holding

The dismissal was justified because the grievant engaged in activities that negatively impacted the respondent's reputation and absconded duty during leave

Reasoning

The grievant overstayed approved leave and his explanation of irregular business transactions as personal matters was unsatisfactory. Complaints by third parties were legitimate, and a show cause letter, suspension, disciplinary hearing and appeal were all accorded him, satisfying Sections 43, 44 and 45 of the Employment Act and clause 10(c) of the CBA.

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02

Justifiable reason for dismissal of the 3rd grievant (driver)

Holding

The dismissal was lawful because the driver was out of the designated route on a personal errand when the accident occurred

Reasoning

The grievant was assigned to pick up and ferry the CEO but went along James Gichuru Road where the accident occurred. His explanations (broken ball-joint, towing by police instruction) were contradicted by the accident report he signed and the towing costs incurred. Fair procedure under Section 41 and the CBA was followed, so dismissal under Sections 43, 44 and 45 was lawful.

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03

Onus of proof regarding the 2nd grievant

Holding

The 2nd grievant, who did not testify, failed to discharge the onus of proving wrongful termination

Reasoning

No testimony was given by or on behalf of the 2nd grievant. Under Section 47(5) of the Employment Act read with Sections 107 and 108 of the Evidence Act, the employee bears the burden of establishing a probable case of wrongful termination, and the respondent then justifies its reasons. In the absence of evidence, the claim fails.

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04

Terminal benefits

Holding

All terminal benefits claimed had been paid; no further entitlements were proved

Reasoning

RW1's testimony demonstrated payment of salary for days worked, leave, notice pay, share capital refund and pension dues less liabilities. The court found no tangible evidence of any further amounts owed and dismissed the terminal benefits claims for all three grievants.

p. 3

Legal principles established

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  • An employer must justify the reason for termination under Sections 43 and 45 of the Employment Act, while the employee bears the primary onus of establishing that the termination was wrongful under Section 47(5) read with Sections 107 and 108 of the Evidence Act
  • A fair procedure (show cause, hearing before a disciplinary committee, appeal) plus a valid reason renders a summary dismissal lawful under Sections 41, 43, 44 and 45 of the Employment Act

Court orders

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  1. 1.The claim on wrongful termination is dismissed
  2. 2.The claims for payment of terminal benefits by the 3 grievants are dismissed
  3. 3.The claimant union and the Respondent to bear their own costs of the suit

Authorities

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Legislation

  • Employment ActSections 41, 43, 44, 45, 47(5)
  • Evidence ActCap 80, Sections 107 and 108
  • Civil Procedure Actcosts provisions (general reference)
  • Collective Bargaining Agreement 2012/2013 (respondent and claimant union)Clauses 10(a) and 10(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Relations Act (dispute over wrongful summary dismissal; CBA and Recognition Agreement cited)

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, "Banking Insurance and Finance Union (K) v Ukulima Sacco Society Limited [2019] KEELRC 252 (KLR)", Case Analysis (2019). Cause No. 255 of 2013 and Cause No. 255B of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/252/eng@2019-11-22

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