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ELRCDismissedStatement of claim dated 19th December 2017, filed 20th December 2017· [2022] KEELRC 489 (KLR)

Kipkirui Chepkeres Labati v Cooperative Bank Of Kenya Ltd [2022] KEELRC 489 (KLR)

Employment and Labour Relations Court
15 March 2022
OKOcharo Kebira
4,929 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 upheld a bank teller's dismissal for an unexplained Kshs 100,000 cash shortage, ruling the sacking was fair on both substance and procedure.

What this practically means

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Executive summary

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The Claimant, a graduate clerk employed by the Respondent bank from January 2013 and deployed as a teller in July 2015, incurred an unexplained cash shortage of Kshs 100,000 on 21st December 2015. He was issued a show-cause notice, appeared before a disciplinary hearing accompanied by a union official, and his employment was terminated on 22nd February 2016 under Clause A5 of the Collective Bargaining Agreement. His appeal was dismissed. He reported a trade dispute through his union; a conciliator recommended payment of one month's salary in lieu of notice and pending leave dues, which were paid, but he nonetheless brought this claim seeking reinstatement or re-engagement, twelve months' gross salary compensation, notice pay, leave dues, interest and costs. The court framed four issues: substantive fairness, procedural fairness, remedies, and costs. Applying sections 41, 43, 44 and 45 of the Employment Act and adopting the contextual approach in McKinley v BC Tel and Laws v Landon Chronicle, the court held the employer discharged its burden of proving a valid and fair reason: the shortage was a physical cash shortage, the Claimant failed to account for monies in his care as a teller, and the conduct amounted to gross misconduct under the CBA and staff manual. Procedurally, the section 41 requirements of information, hearing and consideration of explanation were met, and the CBA did not require a prior warning for gross misconduct. The claim was accordingly dismissed, the Claimant being entitled to no reliefs. An express costs order does not appear in the disposition.

Key legal issues

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01

Whether the dismissal was substantively fair

Holding

Substantively fair - the employer proved a valid and fair reason: an unaccounted-for cash shortage of Kshs 100,000 by a teller, justifying summary dismissal under the CBA, staff manual and Employment Act

Reasoning

The court applied sections 43, 44 and 45 of the Employment Act and a contextual approach to whether the misconduct destroyed the employment relationship. The Claimant admitted the shortage; reconciliation showed a physical, not operational, shortage; and his failure to account for money in his care breached the employer's faith. The sanction was proportionate to the role of a teller handling large sums.

p. 6
02

Whether the dismissal was procedurally fair

Holding

Procedurally fair - section 41 requirements (information, hearing, consideration of explanation) were complied with, and the CBA clause on warnings did not apply to gross misconduct

Reasoning

The Claimant received a show-cause notice, was heard with union representation, and his explanation was considered but found unsatisfactory. The court rejected the argument that Clause A5[b] entitled him only to a warning, holding that clause dealt with acts of gross misconduct attracting summary dismissal, and that no manual stipulation barred summary dismissal absent a prior warning.

p. 7
03

Whether the Claimant was entitled to the reliefs sought

Holding

No reliefs were due as the dismissal was fair

Reasoning

Having upheld both the substantive and procedural fairness of the termination, the court held that the remedies under sections 12, 49 and 50 of the Employment Act - reinstatement, re-engagement, compensation, damages and other reliefs - were unavailable to the Claimant.

p. 7

Legal principles established

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  • A finding of misconduct does not by itself justify summary dismissal; the contextual gravity of the conduct must be assessed
  • The employer bears the burden of proving valid and fair reasons for termination under sections 43 and 45 of the Employment Act

Court orders

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  1. 1.The Claimant's claim is dismissed

Authorities

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Legislation

  • Employment Actsections 12, 41, 43, 44[1], 44[3], 44[4], 45, 49, 50
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (7)

  • Kenya plantation and Agricultural Workers Union vs Finlays Horticultural Kenya Ltd
    (2015) eKLR
  • Telkom Kenya Limited versus Paul Ngotwa
    Civil Appeal (number not stated)
  • Banking Insurance and Finance union vs Co-operative Bank of Kenya Limited
    (2015)
  • Charles Kinyua and another vs Meru Central Diary co-operative Union Limited
    (2015) eKLR
  • Rand Water Vs Johan Stoop & Another
    JA 78/11
  • Laws v Landon Chronicle Limited
    [1959] 2 ALL L.R
  • Gerry Bouwer Motors (pty) Ltd v Preller
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over the trade dispute reported under the Labour Relations Act; reliefs under sections 12, 49 and 50 of the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kipkirui Chepkeres Labati v Cooperative Bank Of Kenya Ltd [2022] KEELRC 489 (KLR)", Case Analysis (2022). Statement of claim dated 19th December 2017, filed 20th December 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/489/eng@2022-03-15

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