Banking, Insurance and Finance Union (K) v KCB Bank (K) Limited ; Dishon Ochieng Achiro and 70 Others ( Interested Parties) [2019] KEELRC 2506 (KLR)
The bottom line
#Kenya's Employment Court dismissed a union's challenge to KCB's performance appraisal system, ruling management tools are non-negotiable and disputes must go through internal procedures first.
What this practically means
#Executive summary
#Key legal issues
#Whether the Balanced Score Card appraisal is negotiable under the Recognition Agreement
It is non-negotiable, being a management method falling under Appendix B; performance plans and capability hearings are management prerogatives
The court read Appendix B as a residual catch-all: anything not listed as negotiable in Appendix A is non-negotiable. Following the earlier BIFU v Barclays Bank decision, performance development plans, performance improvement plans and capability hearings are internal management prerogatives. The BSC, introduced in 2006 and used for over a decade without dispute, could not now be attacked by the union.
Whether the BSC was used to unfairly victimise employees
Not proved; no affected employee testified or swore an affidavit and the union produced only warning letters for failure to meet targets
The claimant attached warning letters and performance improvement programme letters but called no employee to give evidence and filed no employee affidavit. There was no evidence that targets were unachievable, set without consultation, or irrelevant to job descriptions. Specific assessment grievances should have gone through the JNC under Clause 19(f) and internal grievance machinery.
Whether the claim was premature for failure to exhaust internal and statutory dispute resolution
Yes; the union bypassed Clause 18 grievance machinery, the JNC under Clause 19(f), and compulsory conciliation under Section 62 of the Labour Relations Act
Clause 18 provides internal grievance procedures and Clause 19(f) allows the JNC to consider unresolved grievances referred under Clause 18. Section 62 of the Labour Relations Act requires compulsory conciliation of trade disputes, with direct court filing only in the urgent circumstances in Section 74 (recognition, redundancy without notice, essential services), none of which applied here.
Whether the claimant was entitled to the prayers sought
All three prayers failed and the claim was dismissed with no orders as to costs
Prayer 1 was spent by the consent order of 6 September 2018 and the union needs no court order to approach the JNC. Prayer 2 failed for want of proof and pleading specifics (names and dates of letters). Prayer 3 was ambiguous and unproved. The court nonetheless noted that members' grievances must be addressed through internal machinery and that the union must be involved in any disciplinary process under Section 41 of the Employment Act.
Legal principles established
#- Any item not listed in Appendix A of the Recognition Agreement falls under Appendix B and is not a matter for negotiation; performance management tools such as the Balanced Score Card are internal management prerogatives
- Prolonged silence after the introduction of a management practice amounts to acquiescence and estops a union from challenging its introduction
- Disputes between employers and trade unions must first go through conciliation and agreed internal dispute resolution machinery before being filed in court
Court orders
#- 1.The claim is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Jurisdiction as the Industrial Court under the Labour Relations Act (urgent referrals under Section 74); no constitutional article invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance and Finance Union (K) v KCB Bank (K) Limited ; Dishon Ochieng Achiro and 70 Others ( Interested Parties) [2019] KEELRC 2506 (KLR)", Case Analysis (2019). Cause No 1619 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2506/eng@2019-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.