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ELRCPartially AllowedCause No 1460 of 2015· [2020] KEELRC 1118 (KLR)

Ann Gatoru Waweru v Barclays Bank of Kenya Ltd [2020] KEELRC 1118 (KLR)

Employment and Labour Relations Court
6 May 2020
2,913 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled Barclays unfairly fired a branch manager because neither investigators nor the disciplinary panel found her at fault.

What this practically means

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Executive summary

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The claimant, employed by the respondent bank since 7th August 1993 and serving as Branch Manager at the Haile Selassie Branch, was terminated on 7th April 2015 following a forensic investigation into a disputed cash withdrawal of Kshs 800,000, an ATM cash shortage of Kshs 1,056,000 and a cashier till shortage of Kshs 234,211.75. She was accused of negligence and failure to exercise proper management oversight and to institute effective snap checks. She sought compensation of Kshs 5,639,657.30. The forensic investigation report did not implicate the claimant and did not recommend disciplinary action against her; the disciplinary panel of 18th March 2015 likewise made no recommendation for disciplinary action, finding she was misled by snap checkers and was not required to conduct snap checks personally. However, the Employee Relations Manager unilaterally varied the panel's recommendations, citing additional factual allegations without giving the claimant a chance to respond, contrary to section 41(2) of the Employment Act. The court found the respondent failed to prove valid reasons for termination and returned a verdict of unfair termination. Considering her 22 years of service and that she had secured other banking employment, the court awarded six months' salary of Kshs 1,559,322 as compensation, noting terminal benefits had been paid. The claimant was also awarded costs of the suit.

Key legal issues

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01

Validity of the reasons for termination

Holding

The respondent failed to prove valid reasons for terminating the claimant's service; the claimant was exonerated by both the forensic investigators and the disciplinary panel

Reasoning

The forensic investigation report did not implicate the claimant in the disputed withdrawal or ATM shortage and did not recommend disciplinary action against her. The disciplinary panel found she relied on misleading staff and was not required to conduct snap checks personally. The court found she was exonerated by both the investigators and the panel, so the respondent failed to prove valid reasons to the required standard.

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02

Procedural fairness in the variation of the disciplinary panel's recommendations

Holding

The unilateral variation of the disciplinary panel's recommendations by the Employee Relations Manager without giving the claimant a chance to respond to the additional allegations breached section 41(2) of the Employment Act

Reasoning

The disciplinary panel did not recommend any disciplinary action against the claimant. Mr Ooko varied the recommendations citing additional factual allegations, but there was no evidence the claimant was given an opportunity to react to these new allegations. Section 41(2) of the Employment Act required she be accorded a chance to explain herself.

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03

Quantum of compensation for unfair termination

Holding

The court awarded six months' salary as compensation, considering the claimant's 22 years of service and the fact that she had secured employment with another bank

Reasoning

In assessing quantum the court took into account the long years of service the claimant rendered, the career opportunity the respondent accorded her in banking, and noted that by trial she was already working with another bank. She had also received her terminal benefits, so six months' salary was awarded.

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Legal principles established

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  • In a termination of employment claim, the burden of proving unfair termination lies on the claimant while the burden of proving the reasons for termination lies on the employer
  • Where additional factual allegations are introduced after a disciplinary hearing, section 41(2) of the Employment Act requires that the employee be given a chance to explain herself

Court orders

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  1. 1.A verdict of unfair termination of employment is entered against the respondent
  2. 2.The respondent shall pay the claimant six months' salary as compensation for unfair termination, being Kshs 1,559,322
  3. 3.The claimant shall have costs of the suit

Authorities

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Legislation

  • Employment Actsection 41(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim filed under the Employment Act)

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, "Ann Gatoru Waweru v Barclays Bank of Kenya Ltd [2020] KEELRC 1118 (KLR)", Case Analysis (2020). Cause No 1460 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1118/eng@2020-05-06

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