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ELRCPartially AllowedNot stated in the excerpt (Cause commenced 26 November 2018)· [2020] KEELRC 1869 (KLR)

Banking, Insurance and Finance Union v Middle East Bank (K) Limited [2020] KEELRC 1869 (KLR)

Employment and Labour Relations Court
24 January 2020
2,964 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that four Middle East Bank employees were wrongly denied union membership and are owed wage arrears under the 2017 CBA.

What this practically means

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Executive summary

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The Banking, Insurance & Finance Union sued Middle East Bank (K) Ltd in November 2018 claiming that four employees (the Grievants - Stephen Mungai, Irene Gichuhi, David Onamu and Florence Munga) were unionisable and entitled to benefits under collective bargaining agreements concluded with the Kenya Bankers Association. A trade dispute reported in June 2018 had produced a Certificate of Unresolved Dispute in September 2018, after which the Bank wrote to the Grievants classifying them as junior management ineligible for union membership. The Bank challenged the competency of the Cause for non-joinder of the Kenya Bankers Association, relying on BIFU v Bank of India, and contended that the Grievants performed confidential, supervisory and lower-level management functions excluded by clause 2 of the recognition agreement and the Industrial Relations Charter. The Court distinguished Bank of India, holding that this dispute sought interpretation of individual rights, not industry-wide uniform standards, so the Association's absence was not fatal. On the merits, the Court held the right to join a trade union is not absolute but that the burden lay on the Bank to show the Grievants fell within the excluded category. Examining job descriptions rather than titles alone, the Court found no supervisory, disciplinary, policy or genuinely confidential functions and declared the Grievants unionisable and covered by the 2017 CBA. The Court ordered payment of wage increment arrears to each Grievant but declined a disturbance allowance for Florence Munga for want of proof. Each party was ordered to bear its own costs. Judgment was delivered in Nairobi on 24 January 2020 by Radido Stephen J.

Key legal issues

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01

Competency of the Cause without the Kenya Bankers Association

Holding

The Cause was competent; the Association's participation was not mandatory

Reasoning

The Bank relied on BIFU v Bank of India, an industry-wide standards case. The Court distinguished it: this dispute did not seek to set uniform banking standards but sought interpretation of whether individual Grievants were excluded by existing instruments. The Court had to examine the Grievants' individual rights against standards already agreed, so the Association's absence was not fatal.

p. 3
02

Whether the Grievants are unionisable

Holding

Yes; they are unionisable and validly joined the Union

Reasoning

Applying the Industrial Relations Charter, recognition agreement and CBA exclusion clause, the Court examined job descriptions beyond titles. The Grievants had no supervisory, disciplinary or policy-coordination functions, no demonstrated confidential functions beyond ordinary bank employees, and no organogram showed supervision of subordinates. Designations as 'Officer' were potentially misleading. The employer failed to discharge its burden of showing exclusion.

p. 4
03

Disturbance allowance for Florence Munga

Holding

Declined for lack of proof

Reasoning

The Union claimed Kshs 235,406/- as disturbance allowance for Florence Munga but adduced no proof of entitlement. Relief was therefore refused on that head.

p. 4

Legal principles established

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  • The right to join a trade union, including for management staff, is guaranteed but not absolute; a reasonable restriction excludes certain management staff
  • Unionisability is determined by both designation/title and the actual job description and responsibilities against the exclusion clauses, not titles alone
  • The burden lies on the employer to demonstrate that an employee falls within the excluded non-unionisable category
  • Non-joinder of the Kenya Bankers Association is not fatal to an individual-bank unionisability dispute

Court orders

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  1. 1.A declaration that the Grievants are unionisable employees and are covered by the collective bargaining agreement in effect from 2017
  2. 2.The Respondent to pay the Grievants wage increment arrears: Stephen Mungai Kshs 316,248/-; Irene Wanjiku Gichuhi Kshs 280,970/-; Florence Munga Kshs 409,591/-; Davis Onamu Kshs 398,348/-
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 20(2)

Cases cited (5)

  • Kenya Union of Commercial, Food & Allied Workers v Kenya Bankers Association
    Cause No. 81 of 1985
  • East African Portland Cement Co. Ltd v Kenya Chemical & Allied Workers Union
    (2017) eKLR
  • Banking, Insurance and Finance Union v Bank of India
    (2019) eKLR
  • Kenya Union of Sugar Plantation and Allied Workers v Mumias Sugar Company Limited & 6 others
    (2016) eKLR
  • Kenya Game Hunting and Safari Workers Union v Lewa Wildlife Conservancy
    (2014) eKLR
Jurisdiction invoked
Article 20(2) and 24 of the Constitution; labour dispute referred after conciliation (Labour Relations Act trade dispute process); ELRC original jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Banking, Insurance and Finance Union v Middle East Bank (K) Limited [2020] KEELRC 1869 (KLR)", Case Analysis (2020). Not stated in the excerpt (Cause commenced 26 November 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1869/eng@2020-01-24

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