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ELRCPartially AllowedCause 1653 of 2014· [2020] KEELRC 1511 (KLR)

Banking Insurance and Finance Union v National Bank of Kenya Limited [2020] KEELRC 1511 (KLR)

Employment and Labour Relations Court
21 February 2020
5,742 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled KCB unfairly fired employees for poor performance without hearings, awarding each 12 months' salary.

What this practically means

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Executive summary

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The claimant union sued on behalf of 20 grievants terminated by the respondent bank on 30th April 2014 on grounds of poor performance following introduction of a performance management system, PIPs and performance reviews in 2013. The union sought declarations that the process was null and void, reinstatement, notice pay, leave pay, terminal dues, 12 months' compensation and lost salaries. The court framed three issues: whether the union should have been involved in the performance management process; whether the terminations were lawful and fair; and entitlement to reliefs. It held that performance appraisals, reviews and PIPs are management prerogatives and, under clause 17 of the parties' Memorandum of Agreement, non-negotiable, so the respondent acted within its mandate. However, on procedure, all grievants testified they received no warnings, show cause letters or disciplinary hearings, and RW1 conceded none occurred; the court found the terminations unprocedural and unfair under sections 41, 43 and 45 of the Employment Act. The respondent also failed to justify the reasons, some grievants having been assessed against positions they never held, and the court found the performance system was abused as a disguised redundancy. Prayers (a) to (c) were declined as untenable and overtaken by events; reinstatement failed as more than three years had lapsed; notice pay, leave, terminal dues were refused as already paid; lost salaries and CBA arrears claims were also refused. Each grievant was awarded 12 months' compensation, and costs of Kshs.100,000 were awarded to the claimant. Four grievants had withdrawn to pursue individual claims.

Key legal issues

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01

Whether the union ought to have been involved in the performance management process

Holding

The court declined to interfere; performance management is a non-negotiable management prerogative under clause 17 of the Memorandum of Agreement

Reasoning

The parties' Memorandum of Agreement of 2000 listed management methods among non-negotiable items and clause 7(c) bound the union not to interfere with management functions. Performance appraisals and PIPs fall within this. The court therefore held the respondent acted within its mandate and relied on the Barclays Bank decision.

p. 6
02

Whether the terminations were procedurally fair

Holding

Unprocedural - no show cause letters, warnings or disciplinary hearings were issued despite the requirement of sections 41 and 44(2) and 45(1) of the Employment Act

Reasoning

All claimant witnesses testified they never received warnings or show cause letters and were never subjected to a disciplinary process. RW1 conceded in cross-examination that grievants ought to have been issued with show cause letters and taken through disciplinary hearings, and produced no documents proving a disciplinary process. Section 41 is a mandatory process.

p. 6
03

Whether the reasons for termination were valid and substantively justified

Holding

Not valid - the respondent failed to justify the reasons, which were never tested through a disciplinary hearing; some grievants were assessed against positions they had not held

Reasoning

Section 43(1) places the burden on the employer to prove reasons for termination. Applying the Jane Samba Mukala criteria, the employer must show a performance measurement policy, measures to address poor performance, and a hearing. The respondent produced no PIP for some grievants and assessed employees against roles they had not worked in, leading the court to find the process was a disguised redundancy.

p. 6
04

What remedies were appropriate

Holding

Twelve months' compensation awarded to each grievant; reinstatement, notice pay, leave and terminal dues claims refused

Reasoning

Reinstatement was time-barred as more than three years had passed. Compensation was justified by the callous manner of the process, grievants assessed against positions they had never held and the apparent disguise of a redundancy as poor-performance terminations. Notice pay, leave and terminal dues had already been paid.

p. 7

Legal principles established

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  • Performance appraisal, review and performance improvement plans are management prerogatives and, where the parties have agreed they are non-negotiable, the court will not disturb that agreement
  • Termination for poor performance without a notice to show cause and a disciplinary hearing under section 41 of the Employment Act is unprocedural and unfair
  • An employer must prove that reasons for termination on grounds of poor performance were valid and tested through a disciplinary hearing

Court orders

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  1. 1.Declaration that the terminations of the grievants' employment were unfair both procedurally and substantively (implied from the finding)
  2. 2.Award of 12 months' salary as compensation to each of the grievants for unfair and unlawful termination
  3. 3.Costs of the suit awarded to the Claimant, assessed at Kshs.100,000

Authorities

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Legislation

  • Employment Actsections 8, 41, 42, 43(1), 44(2), 45(1), 45(2)(a), 49(4)
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Banking Act

Cases cited (14)

  • Anthony Njue John vs. National Bank of Kenya Limited
    [2017] eKLR
  • Kenfreight (EA) Limited vs. Benson K. Nguti
    Civil Appeal 31 of 2015
  • Naqvi Syed Qmar vs. Attorney General
    Cause 346 of 2014
  • Banking Insurance and Finance Union (Kenya) v Barclays Bank of Kenya Ltd & another
    [2016] eKLR
  • Alphonce Machanga Mwanchanya vs. Operation 68 Limited
    [2018] eKLR
  • Liberata Njau Njioka vs. Magadi Soda Company Limited
    [2011] eKLR
  • Jane Samba Mukala vs. Oitukai Lodge Limited
    [2010] LLR 225; Industrial Cause Number 823 of 2010; (2010) LLR 255 (ICK)
  • Koki Muia vs. Samsung Electronics East Africa Limited
    [2015] eKLR
  • CMC Aviation vs. Captain Noor Mohamed
    [2015] eKLR
  • Elizabeth Wakanyi Kibe vs. Telkom Kenya Limited
    [2014] eKLR
  • D.K. Njagi Marete vs. Teachers Service Commission
    [2013] eKLR; Industrial Cause No. 379 of 2009
  • Parliamentary Service Commission vs. Christine Mwambua
    [2018] eKLR
  • Mary Chemweno Kiptui vs. Kenya Pipeline Company Limited
    [2014] eKLR
  • Maina Kagai Ligaga v Coca Cola East and Central Africa Limited
    Cause Number 611 [N] of 2009
Jurisdiction invoked
Article 162(2) of the Constitution and the Employment and Labour Relations Court Act, jurisdiction under section 12 of the ELRC 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, "Banking Insurance and Finance Union v National Bank of Kenya Limited [2020] KEELRC 1511 (KLR)", Case Analysis (2020). Cause 1653 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1511/eng@2020-02-21

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