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ELRCDismissedCause (2014)· [2019] KEELRC 1438 (KLR)

Banking, Insurance and Finance Union (Kenya) v Ukulima Co-operative Savings & Credit Society Ltd [2019] KEELRC 1438 (KLR)

Employment and Labour Relations Court
4 April 2019
RSRadido Stephen
1,266 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a sacco employee's dismissal because he had every chance to respond to fraud allegations and repay a surcharge but did not.

What this practically means

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Executive summary

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The Banking, Insurance & Finance Union (K) sued Ukulima Co-Operative Savings & Credit Society Ltd on behalf of grievant Dickson M. Mwanje, challenging his summary dismissal as wrongful and unfair. The dispute was heard in this Cause and related Causes 255 and 255B of 2013, which were not consolidated but listed together; after Nduma J was transferred, Radido J concluded the hearing. The court identified two issues: whether the termination was unfair, and appropriate remedies. On procedural fairness, the Grievant, suspended over alleged fraudulent transactions causing loss of Kshs 1,300,000, was given show cause notices, responded in writing, made oral representations before the Board accompanied by union officials, was surcharged Kshs 471,250, and received repeated opportunities to explain his failure to pay. The court found the process met both statutory and contractual procedural fairness. On substantive fairness, the immediate cause of dismissal was failure to make good the surcharge despite being granted a loan; the court held the Grievant could not expect the employer to debit his FOSA account without instructions, and found he never intended to pay. Applying the principle that an employee owes a common law duty of cooperation and good faith, the court concluded the Respondent proved valid and fair reasons for dismissal. Reinstatement, compensation and pecuniary loss remedies were consequently unavailable, and the Cause was dismissed with no order as to costs.

Key legal issues

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01

Procedural fairness of the dismissal

Holding

The process met both statutory and contractual thresholds for procedural fairness

Reasoning

The Grievant was suspended with a show cause notice, responded in writing, made oral representations before the Board accompanied by union officials, was found culpable and surcharged, and received multiple further opportunities to explain. The court was satisfied he could confront the allegations at every stage.

p. 2
02

Substantive fairness of the dismissal

Holding

The reasons for dismissal - failure to make good the surcharge - were valid and fair

Reasoning

The Grievant was found culpable of fraudulent transactions causing loss of Kshs 1,300,000 and surcharged Kshs 471,250. He obtained a loan to pay but did not pay, and failed to keep payment commitments despite repeated chances. He could not expect the employer to debit his FOSA account without instructions, as that would breach contract.

p. 3

Legal principles established

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  • An employee owes a common law duty to cooperate with the employer and act in good faith during the contract
  • Procedural fairness is met where an employee is afforded written and oral opportunities to confront allegations, including being accompanied during an oral hearing

Court orders

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  1. 1.The Cause is dismissed
  2. 2.No order as to costs

Authorities

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Cases cited (1)

  • Facenda Chicken Ltd v Fowler
    (1986) IRLR 69
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over disputes in the employment relationship (Cause filed 22 May 2014)

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 (Kenya) v Ukulima Co-operative Savings & Credit Society Ltd [2019] KEELRC 1438 (KLR)", Case Analysis (2019). Cause (2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1438/eng@2019-04-04

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