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ELRCDismissedELRC Cause No. 833 of 2019 (lead file, consolidated with a related cause)· [2021] KEELRC 1360 (KLR)

Douglas Wakiihuri Wanjohi & another v Barclays Bank of Kenya Limited [2021] KEELRC 1360 (KLR)

Employment and Labour Relations Court
30 June 2021
NMNzioki Wa Makau
2,908 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld Barclays Bank's dismissal of two employees for processing counterfeit cheques, confirming that verified hearings make terminations fair.

What this practically means

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Executive summary

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The 1st and 2nd Claimants, former employees of Barclays Bank of Kenya, sued in consolidated ELRC claims for alleged unfair termination following the processing of counterfeit cheques drawn on a joint account of a deceased customer between April and May 2019. They claimed declarations that the termination was wrongful and unlawful, severance pay at 15 days per completed year, special damages for union dues, 12 months' salary as compensation, and general damages, totalling Kshs. 2,691,713 and Kshs. 6,775,467 respectively. They contended that the disciplinary hearings were predetermined, that no evidence or witnesses were presented against them, and that they were denied representation of their choice, citing authorities on Sections 41, 43 and 45 of the Employment Act and on unfair labour practices where employer system deficiencies cause losses. The Respondent maintained the terminations were both substantively and procedurally fair: investigations showed the Claimants had authenticated counterfeit cheques and approved call-backs without due diligence, causing losses of Kshs. 4,775,000 and Kshs. 450,000 respectively; hearings and appeals were accorded; and reliance was placed on the heightened duty of trust in banking employment. The Court found the Claimants were in positions of trust, bound to verify cheques before payment, and failed in that duty; that they were accorded hearings and appeals satisfying Section 41; and that cause existed under Section 43, rendering the dismissal fair under Section 45. The suits were dismissed, with the Respondent permitted to charge commercial interest on the Claimants' staff loans only post-judgment, and each party bearing its own costs.

Key legal issues

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01

Validity of the reason for termination

Holding

The termination was for a valid and fair reason - the Claimants cleared cheques for payment from a deceased customer's account without due diligence

Reasoning

The Claimants were in positions of trust, bound to ascertain the veracity of cheques before payment. They were alleged to have failed to effect call-backs, and counterfeit cheques drawn by a deceased drawer passed through them for payment. The Court found there was cause to terminate under Section 43, making the dismissal fair under Section 45.

p. 3
02

Procedural fairness under Section 41

Holding

The disciplinary hearing and appeal satisfied Section 41 safeguards

Reasoning

The Court found nothing in the disciplinary proceedings or appeal remotely suggested the Claimants were denied the safeguards of Section 41. Their claims of predetermined hearings and denial of choice of representative did not persuade the Court against the record of hearing and appeal.

p. 3
03

Entitlement to severance pay and general damages

Holding

Not awarded; the suits were dismissed in their entirety

Reasoning

Having found the dismissal fair and for valid reason, the Court dismissed the suits, which carried with it the refusal of severance pay (the Claimants were not declared redundant), special damages for union money, 12 months' compensation and general damages.

p. 3

Legal principles established

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  • An employer who accords an employee a disciplinary hearing and appeal, and establishes cause for termination under Sections 43 and 45 of the Employment Act, terminates employment fairly
  • A litigant cannot be penalised with commercial interest rates for a period protected by a valid court order

Court orders

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  1. 1.The suits by the Claimants are dismissed
  2. 2.The Respondent is not entitled to charge commercial rates of interest for the period preceding judgment, but may do so post judgment
  3. 3.Each party to bear their own costs for the suits filed

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 43(2)
  • Employment ActSection 45
  • Employment ActSection 45(2)
  • Employment ActSection 45(2)(c)
  • Constitution of KenyaArticle 41(1)

Cases cited (5)

  • Patrick K. Maina v Tusker Mattresses Limited
    [2018] eKLR
  • Grace Gacheri Muriithi v Kenya Literature Bureau
    [2012] eKLR
  • Pius Machafu Isindu v Lavinqton Security Guards Ltd
    [2017] eKLR
  • Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union (K)
    [2017] eKLR
  • Daniel Omache Qgato v Barclays Bank of Kenya Ltd
    unreported
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43 and 45) over claims of unfair termination of employment

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, "Douglas Wakiihuri Wanjohi & another v Barclays Bank of Kenya Limited [2021] KEELRC 1360 (KLR)", Case Analysis (2021). ELRC Cause No. 833 of 2019 (lead file, consolidated with a related cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1360/eng@2021-06-30

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