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ELRCPartially AllowedCause instituted 6 November 2015 (number not stated in judgment)· [2019] KEELRC 1439 (KLR)

Joseph Mairura Mong’oni v Kenya Commercial Bank Ltd [2019] KEELRC 1439 (KLR)

Employment and Labour Relations Court
31 May 2019
RSRadido Stephen
1,208 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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A Kenyan court ruled that disciplinary warnings don't replace termination notice, so a bank employee dismissed without notice was entitled to one month's pay.

What this practically means

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Executive summary

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The Claimant, an employee of Kenya Commercial Bank Ltd, filed a cause on 6 November 2015 alleging refusal to pay his terminal dues following his dismissal by letter dated 20 May 2013, which referred to clause A5(b) of the Collective Bargaining Agreement between the Kenya Bankers Association and the Banking, Insurance and Finance Union (Kenya). The Respondent did not file a Response in time; the Court treated its draft Memorandum of Response as the Response, and at the hearing on 6 March 2019 declined an adjournment application. Both parties relied on the record and brief oral submissions without calling witnesses. The single issue was whether the Claimant was entitled to one month's pay in lieu of notice. The Claimant argued that dismissal under clause A5(b), being dismissal after warning, was not summary dismissal and that section 35(1)(c) & (5) as read with sections 36 and 44(2) of the Employment Act entitled him to notice pay, relying on Telkom Kenya Ltd v Paul Ngotwa. The Respondent contended that pay in lieu of notice was not envisaged under clause A5(b) and that the prior warnings took the case outside summary dismissal. The Court held that warnings cannot substitute for a notice of termination; they only establish a pattern of misconduct and expand the grounds for summary dismissal under section 44(4). Since no written notice was issued, the dismissal was summary, and all dismissals without notice attract pay in lieu of notice under section 36. The Court awarded the Claimant Kshs 144,076/- being one month's pay in lieu of notice, with no order as to costs as he was represented by the Union.

Key legal issues

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01

Whether dismissal after warnings under clause A5(b) of the CBA constituted summary dismissal

Holding

The dismissal was a summary dismissal; the CBA clause expanded the grounds for summary dismissal under section 44(4) of the Employment Act

Reasoning

The Court held that warnings under the CBA are disciplinary sanctions establishing a pattern of misconduct; clause A5(b) expanded the seven grounds in section 44(4) of the Employment Act. Since no written notice of termination was issued, the termination was without notice and therefore summary dismissal under section 44(1), regardless of the prior warnings.

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02

Whether the Claimant was entitled to 1 month pay in lieu of notice

Holding

Yes; all dismissals without notice attract pay in lieu of notice, and the Claimant was awarded one month's salary

Reasoning

Section 35(1) required written notice of at least 28 days for a monthly-paid employee absent summary dismissal. Section 44(1) defines summary dismissal as termination without notice. Since none was issued, section 36 required pay in lieu of notice, quantified at Kshs 144,076/-

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Legal principles established

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  • A disciplinary warning cannot substitute for a notice of termination; it only establishes a pattern of misconduct and puts the employee on notice that further misconduct may warrant summary dismissal
  • All dismissals without notice attract payment of pay in lieu of notice under section 36 of the Employment Act

Court orders

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  1. 1.The Court finds and holds that the Claimant was summarily dismissed and is awarded 1 month pay in lieu of notice of Kshs 144,076/-
  2. 2.No order as to costs
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment and Labour Relations Court)

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, "Joseph Mairura Mong’oni v Kenya Commercial Bank Ltd [2019] KEELRC 1439 (KLR)", Case Analysis (2019). Cause instituted 6 November 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1439/eng@2019-05-31

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