Danvas Miyogo Momanyi v Barclays Bank of Kenya [2022] KEELRC 641 (KLR)
The bottom line
#Kenya's Employment Court ruled the bank fairly fired an employee for sharing confidential customer data, but he must still receive his one month's notice pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid reason to terminate the Claimant's employment
Yes - the Claimant admitted sharing confidential customer data with lead generators without authorisation, constituting negligence and gross misconduct in a sensitive banking environment
The Claimant admitted sharing data with lead generators Victoria and Mark and conceded during the disciplinary meeting that he should have consulted his line manager before sharing data. He had signed a commitment to act in strictest confidence and was aware of the IRM policy. Under Sections 44(4) and 45(2) of the Employment Act, the employer's genuinely held belief at the time of termination suffices. Careless and improper performance of duty amounts to gross misconduct.
Whether fair procedure was followed before termination
Yes - the requirements of Sections 41, 43 and 45 of the Employment Act were complied with: the Claimant was notified of the disciplinary hearing, advised of his right to be accompanied, minutes were signed, and an appeal was heard and upheld
The Claimant was invited for a disciplinary hearing scheduled for 30th September, 2015 and advised of his right to be accompanied by a colleague or union representative in line with Section 41 of the Employment Act. Minutes were written and signed by attendees including the Claimant. He appealed and attended the appeal with a union representative, and the termination was upheld by letter of 9th November, 2015.
Whether the Claimant discharged his burden of proving unfair termination
No - the Claimant failed to discharge his burden under Section 47 of the Employment Act and the termination was not unfair or unlawful
The court applied Section 47 of the Employment Act, which places the burden of proving unfair termination on the employee. Having admitted sharing data and being non-committal on who authorised the sharing, the Claimant failed to show the termination was unfair. The Respondent, on the other hand, demonstrated a valid reason and fair procedure.
Whether the Claimant was discriminated against as other staff who shared emails were not disciplined
The court did not find discrimination; the Claimant's own admission of sharing data distinguished his case
The Claimant claimed he was the only one singled out while other staff members also sent emails. The court noted he did not deny sharing data with Victoria and Mark and was non-committal on who authorised the sharing. His claim that the alleged loss could not be quantified or traced to him did not displace the valid reason for termination.
Legal principles established
#- Section 41 of the Employment Act enjoins an employer, in mandatory terms, to explain to an employee the reasons for contemplated termination in the presence of a witness of the employee's choice before terminating on grounds of misconduct
- In a complaint of unfair termination, the burden of proving that unfair termination occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer
Court orders
#- 1.The Respondent to provide proof of payment of one month salary in lieu of notice if the Claimant is denying receipt within 30 days, or settle the same within 30 days from the date of judgment
- 2.Each party to meet their own costs
- 3.Parties to appear in court on 31st March, 2022 to confirm if the Respondent has indeed withdrawn the counter claim against the Claimant of Kshs.2,185,716.49 plus interest
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over unfair termination claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Danvas Miyogo Momanyi v Barclays Bank of Kenya [2022] KEELRC 641 (KLR)", Case Analysis (2022). Cause No. 133 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/641/eng@2022-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.