Rose Sang Tarus v Barclays Bank of Kenya Limited [2020] KEELRC 804 (KLR)
The bottom line
#A Kenyan court ruled Barclays unfairly fired an employee over her past job history and awarded her six months' salary.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissal
The procedure followed before dismissing the claimant was fair and complied with section 41 of the Employment Act
The claimant was invited to investigatory interviews and to a disciplinary hearing by letter dated 13.11.2013 stating the charges, warning of possible dismissal, and advising her of the right to be accompanied by a union official or fellow employee. She admitted being accorded this right. The court therefore found the respondent had discharged its burden under section 45(2)(c).
Validity of the reason for termination (alleged misrepresentation of career history)
The reason was invalid because the Employee Information Form (A) and Declaration of Fact did not require the claimant to state reasons for leaving previous employers, only reasons for career gaps, and the respondent adduced no rebuttal evidence
The court examined Form (A) and the Declarations of Fact and found they only required explanations for employment gaps longer than two months, which the claimant provided. The respondent's investigators did not rebut those explanations, and its suggestion that KQ's letter confirming resignation was a cover-up was unsupported. The alleged misleading information was not a contractual term, making the dismissal a breach of contract.
Alleged misrepresentation of professional qualifications (ACCA and HR Diploma)
The qualification issue was never canvassed at the disciplinary hearing and the letters relied on were produced after the hearing and never shown to the claimant; the dismissal was based only on the Declaration of Fact
The disciplinary proceedings and the panel's findings did not mention the claimant's professional qualifications or the letters from the institutes. RW1 admitted the disputed letters were written after the hearing and not shown to the claimant. Since section 43(2) confines the reason to matters the employer genuinely believed at termination, the dismissal rested solely on the Declaration of Fact, which the court found invalid.
Entitlement to remedies
The claimant was awarded six months' salary as compensation and a Certificate of Service; reinstatement and expungement orders were refused
Having found the termination unfair, the court invoked section 49 of the Employment Act. Reinstatement was barred by the three-year limitation in section 12 of the ELRC Act since dismissal occurred about seven years earlier. Weighing the short service of less than a year against the claimant's inability to secure other employment, the court awarded six months' gross salary. A Certificate of Service was granted as a statutory right under section 51.
Legal principles established
#- Just cause for dismissal for dishonesty depends on whether the dishonesty gave rise to a breakdown in the employment relationship, assessed in context
- An employer bears the burden of proving both procedural fairness and valid and fair reasons for termination under sections 41, 43 and 45 of the Employment Act
Court orders
#- 1.Declaration that the termination of the claimant's employment was unfair and unlawful
- 2.The claimant is awarded Certificate of Service
- 3.The claimant is awarded Kshs. 2,400,000 as compensation for unfair termination subject to statutory deduction
- 4.Costs of the suit to the claimant plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act, section 12, and the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Sang Tarus v Barclays Bank of Kenya Limited [2020] KEELRC 804 (KLR)", Case Analysis (2020). Cause No. 1271 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/804/eng@2020-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.