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ELRCPartially AllowedELRC Cause No. 125 of 2015 (Nakuru), consolidated with Cause No. 585 of 2015· [2022] KEELRC 915 (KLR)

Sylvia Mututi Magotsi v UBA Bank Kenya Limited [2022] KEELRC 915 (KLR)

Employment and Labour Relations Court of Kenya
28 January 2022
6,658 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled UBA Kenya unfairly sacked its former head of legal, awarding her Kshs 2.87 million because she got almost no time to defend herself.

What this practically means

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Executive summary

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This is a first-instance judgment of the Employment and Labour Relations Court at Nakuru in a consolidated dispute between Sylvia Mututi Magotsi, former company secretary and head of legal at UBA Kenya Bank Limited, and the bank. The claimant sued for declarations of unfair termination and unlawful dismissal, unfair labour practices, and compensation including thirteen months' gross salary and general damages; the bank's consolidated counter-suit (Cause No. 585 of 2015) sought an injunction and damages for breach of contract, negligence and breach of confidentiality. The court framed four issues: validity and fairness of the reasons for termination, procedural fairness, breach of contract and confidentiality, and entitlement to reliefs. It found the reason of negligence valid because the claimant admitted in disciplinary proceedings that she forwarded guarantee documents (SBLCs from Suisse Credit Bancorp for MITTs and PES South Africa) to the Group Counsel without reviewing them, defeating her discrimination claim; but insubordination and absenteeism were not proved since the employer knew of her sickness. Procedurally, the court found the process unfair: the claimant was given as little as 20 minutes to three hours to respond to queries, faced a same-day oral hearing, was not told of her right to representation, and fresh charges were brought while she was on sick off, with a hearing proceeding in her absence. The bank produced no evidence on its suit, which was dismissed. The court declared the dismissal unfair and unlawful and an unfair labour practice, awarded six months' gross salary (Kshs. 2,871,000) under section 49 of the Employment Act, declined thirteen months' salary and unproved pension, insurance and medical claims, and awarded the claimant costs and interest from the date of judgment.

Key legal issues

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01

Whether the reasons for termination were valid and fair

Holding

Negligence was proved by the claimant's admission in disciplinary minutes, so that reason was valid; insubordination and absenteeism were not proved since the employer knew of her sickness

Reasoning

The disciplinary minutes showed the claimant admitted forwarding guarantee documents to the Group Counsel without reviewing them, relying on her assistant. The court held the buck stopped with her as head of legal. However, on absenteeism the employer acknowledged in the termination letter that it was aware of her illness, so those reasons were not proved valid.

p. 7
02

Whether a fair procedure was followed

Holding

The procedure was unfair - the claimant was given only about 20 minutes and about 3 hours to respond to queries, was summoned to an oral hearing the same day, and fresh charges were issued while she was on sick off

Reasoning

Although the committee was properly constituted as the Corporate Disciplinary Committee, the extremely short notice, the same-day oral hearing, failure to inform her of the right to representation, and summoning her to a hearing on 15 January 2015 while on sick off (which proceeded in her absence) violated fair procedure under section 41 of the Employment Act as expressed through the fair-hearing standard.

p. 8
03

Whether the claimant discriminated against her

Holding

Discrimination was not established given her admitted negligence; the claim that she alone was punished failed

Reasoning

The court held that since the claimant admitted negligence, the buck stopped with her given her position, and no discriminatory ground (such as health status) was established. The employer bore the burden under section 5(7) of the Employment Act and Article 27 of the Constitution, but the admission of negligence defeated the discrimination claim.

p. 7
04

Whether the claimant breached contract and confidentiality

Holding

The Respondent's consolidated suit failed for want of evidence and was dismissed

Reasoning

The Respondent alleged the claimant shared confidential customer information with third parties and breached her contract, but produced no evidence in support of its own suit, having seemingly abandoned it and defended only the claimant's claim. The legal and evidential burden lay on the Respondent and was not discharged.

p. 8

Legal principles established

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  • A fair opportunity before termination includes giving the employee ample time to respond to a show cause letter and to prepare an oral defence and to be accompanied by a representative
  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness

Court orders

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  1. 1.It is declared that the Claimant's dismissal was unfair and unlawful
  2. 2.The Respondent shall pay to the Claimant Kshs. 2,871,000 as compensation for unfair and unlawful termination (6 months' gross salary)
  3. 3.Costs and interest to the Claimant at court rate computed from the date of delivery of the judgment
  4. 4.The Respondent's consolidated suit (Cause No. 585 of 2015) alleging breach of contract and confidentiality stands dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (termination of employment and unfair labour practices claims)

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, "Sylvia Mututi Magotsi v UBA Bank Kenya Limited [2022] KEELRC 915 (KLR)", Case Analysis (2022). ELRC Cause No. 125 of 2015 (Nakuru), consolidated with Cause No. 585 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/915/eng@2022-01-28

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