Banking, Insurance & Finance Union (K) v Co-operative Bank of Kenya [2019] KEELRC 1794 (KLR)
The bottom line
#Kenya's Employment Court ruled a bank lawfully dismissed an ATM custodian for concealing a cash shortage, finding the dismissal fair, justified, and non-discriminatory.
What this practically means
#Executive summary
#Key legal issues
#Whether the Grievant was given a fair hearing under Section 41 of the Employment Act
A hearing was held at which the Grievant was allowed to bring a fellow employee of his choice, and he testified he opted not to be accompanied.
The court found it common ground that a hearing took place before the disciplinary process culminating in summary dismissal. The Grievant's own testimony in court that he chose not to be accompanied contradicted the claim's assertion that he was denied a union official or shopsteward. Procedural fairness under Section 41 was therefore satisfied.
Whether the differential treatment of the Grievant and his co-custodian Lilian amounted to discrimination
The differential punishment was not discriminatory because the Grievant handled the ATM with the shortfall and failed to report the anomaly, warranting the heavier sanction.
The court found the Grievant and Lilian handled different ATMs instead of handling them together as required. Since the Grievant was the custodian of the ATM with the shortfall and did not report the discrepancy, the Respondent could infer fraud on his part. The investigator's report recommending a warning was not binding on HR, and the gravity of each custodian's contribution justified different sanctions.
Whether the summary dismissal was substantively justified
Yes - the manipulation and falsification of ATM balances to conceal a cash shortage constituted gross misconduct under Section 44 of the Employment Act.
The evidence showed the Grievant was custodian of ATM 14 when a Kshs. 350,000/- shortage was detected, that an imaginary figure was keyed in to conceal the shortfall before reconciliation, and that the timing of the addition (11.59am, before offsite cash arrived at 12.00pm) negated his explanation. Breach of the operating manual and code of conduct justified summary dismissal.
Legal principles established
#- The fairness of a dismissal is subject to the internal disciplinary mechanism and the provisions of Section 41 of the Employment Act, and a hearing at which the employee may be accompanied by a fellow employee of his choice satisfies Section 41 where the employee opts not to be accompanied.
- Where dual custodians operate singly in breach of procedure, differential punishment between them is not discriminatory but reflects the gravity of each one's contribution to the misconduct.
- Manipulation or falsification of records to conceal a cash shortage amounts to gross misconduct justifying summary dismissal under Section 44 of the Employment Act.
Court orders
#- 1.The claim is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Referenced to the court by the Ministry of Labour after a deadlock in conciliation; Employment and Labour Relations Court jurisdiction (specific provision not stated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance & Finance Union (K) v Co-operative Bank of Kenya [2019] KEELRC 1794 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1794/eng@2019-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.