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ELRCPartially AllowedCause No 480 of 2016· [2023] KEELRC 103 (KLR)

Banking, Insurance and Finance Union (Kenya) v Standard Chartered Bank (Kenya) Ltd (Cause 480 of 2016) [2023] KEELRC 103 (KLR)

Employment and Labour Relations Court
20 January 2023
6,071 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a bank unfairly fired an employee by abandoning her disciplinary hearing midway, but only because proper process wasn't followed.

What this practically means

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Executive summary

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The claimant union sued on behalf of Jemima Mwenesi Kisia, a clerk employed by the respondent bank from 15th November 2013 under successive fixed term contracts, the last undisputed one ending 30th June 2015. She worked until 7th August 2015 without a signed contract, receiving a letter dated 31st July 2015 stating the bank would not extend her contract, referencing a disciplinary hearing on poor performance. The union sought notice pay, leave encashment, underpaid salary for 20 months, compensation, gratuity and leave allowance totalling Kshs 1,916,529. The respondent contested the union's locus standi and maintained the contract effluxed by time. The court held the union had associational standing, following Kenya Shoe & Leather Workers Union v Falcon Tanners. The two contracts covering July to August 2015 were unsigned by the grievant, showing no meeting of minds, so her exit could not be attributed to effluxion of time; the respondent terminated her for poor performance. Substantively justified by documented performance issues, the termination was nonetheless procedurally unfair because the disciplinary process ended mid-stream without the agreed follow-up meeting, contrary to sections 41 and 45 of the Employment Act. The court awarded four months' gross salary (Kshs 144,000) as compensatory damages plus interest, and the tabulated terminal dues. Claims for CBA-based underpayments, leave allowance and separate gratuity failed for want of proved union membership, non-retrospectivity of the 2016 agreement and lack of specific pleading. Costs were awarded to the claimant.

Key legal issues

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01

Locus standi of the claimant union

Holding

The union had standing to sue on behalf of the grievant notwithstanding unproved membership

Reasoning

Relying on associational standing doctrine from Kenya Shoe & Leather Workers Union v Falcon Tanners, the court held that unions may prosecute employees' claims and barring them would create technical barriers to access to justice. The respondent had also participated in conciliation with the union without raising locus, and suffered no prejudice.

p. 5
02

Effluxion of time versus termination

Holding

The grievant's exit was a termination on account of poor performance, not effluxion of time

Reasoning

The two contracts covering 1st July to 7th August 2015 bore only the respondent's signature, so no fixed term contract existed for that period. She continued working and being paid. The termination letter referenced the disciplinary hearing and poor performance, which is inconsistent with a mere expiry of contract.

p. 6
03

Substantive justification for termination

Holding

The respondent was justified in taking disciplinary action on account of poor performance

Reasoning

Emails from 2014 through 2015 from the line manager and colleagues documented persistent performance issues: high error rates, low processing volumes, poor turnaround and lateness. The certificate of recognition related to a sales campaign outside her core duties and did not displace the performance evidence.

p. 10
04

Procedural fairness of the termination

Holding

The termination was procedurally unfair and unlawful under section 45(2)(c) of the Employment Act

Reasoning

Although a disciplinary hearing was held on 18th June 2015, the panel agreed to reconvene to compile and exchange data and schedule a further meeting. No such meeting occurred; the process ended mid-stream and termination referenced the unresolved disciplinary process, contrary to sections 41 and 45 of the Employment Act.

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Entitlement to reliefs

Holding

Only compensatory damages of four months' gross salary and the tabulated terminal dues were awarded; CBA-based claims failed for want of proved union membership

Reasoning

Compensation of four months' gross salary reflected the length of employment. Underpayment and leave allowance claims depended on the CBA and the 2016 agreement, which did not apply to the grievant, a non-member who had left before the agreement. Gratuity was not specifically pleaded and was already in the tabulated dues.

p. 12

Legal principles established

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  • A trade union has associational standing to sue on behalf of a grievant even where membership is not proved, and raising locus standi belatedly after participating in conciliation is improper
  • Where an employee continues working without a signed fixed term contract, the contract cannot be terminated by effluxion of time; unsigned unilateral contracts show no meeting of minds
  • A CBA benefits only proved union members; union membership is voluntary and cannot be implied from job cadre
  • Termination requires both substantive justification and procedural fairness; a disciplinary process that ends mid-stream renders termination procedurally unfair

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent
  2. 2.Compensatory damages awarded to the grievant in the sum of Kshs 144,000.00, equivalent to 4 months of her gross salary
  3. 3.Interest on the award at court rates from the date of judgment until payment in full
  4. 4.Terminal dues as tabulated by the respondent (notice pay, salary for the period worked, leave days balance and gratuity balance) payable to the grievant
  5. 5.The claimant awarded the costs of the suit

Authorities

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Legislation

  • Employment Actsection 43(1) and (2)
  • Employment Actsection 45(2)(a), (b) and (c)
  • Employment Actsection 41
  • Labour Relations Actsection 48
  • Constitution of KenyaArticle 41(1)(c)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Linda Ndenego Mwakugu vs Open Society Institute Company Limited
    (2020) eKLR
  • East Africa Portland cement Co. Ltd vs Kenya Chemical and Allied Workers Union
    (2017) eKLR
  • KUDHEIHA Workers vs Board of Management Kihumbuini Secondary School
    (2015) eKLR
  • Katiwa Muthoka vs English Press Limited
    (2019) eKLR
  • Kenya Shoe & Leather Workers Union vs Falcon Tanners Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (implied; the grievant reported a trade dispute to the Cabinet Secretary for labour and conciliation ensued under the Labour Relations Act)

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, "Banking, Insurance and Finance Union (Kenya) v Standard Chartered Bank (Kenya) Ltd (Cause 480 of 2016) [2023] KEELRC 103 (KLR)", Case Analysis (2023). Cause No 480 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/103/eng@2023-01-20

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