Banking, Insurance and Finance Union (Kenya) v Standard Chartered Bank (Kenya) Ltd (Cause 480 of 2016) [2023] KEELRC 103 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Locus standi of the claimant union
The union had standing to sue on behalf of the grievant notwithstanding unproved membership
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.
Effluxion of time versus termination
The grievant's exit was a termination on account of poor performance, not effluxion of time
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.
Substantive justification for termination
The respondent was justified in taking disciplinary action on account of poor performance
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.
Procedural fairness of the termination
The termination was procedurally unfair and unlawful under section 45(2)(c) of the Employment Act
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.
Entitlement to reliefs
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
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.Compensatory damages awarded to the grievant in the sum of Kshs 144,000.00, equivalent to 4 months of her gross salary
- 3.Interest on the award at court rates from the date of judgment until payment in full
- 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.The claimant awarded the costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.