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ELRCPartially AllowedCause No 748 of 2017· [2023] KEELRC 133 (KLR)

Waweru v Barlcays Bank of Kenya (Cause 748 of 2017) [2023] KEELRC 133 (KLR)

Employment and Labour Relations Court
20 January 2023
5,617 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a bank cashier's dismissal was unfair because the employer never told her the charges against her, awarding her 8 months' salary.

What this practically means

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Executive summary

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The Claimant, a cashier employed by the Respondent Bank, challenged the termination of her employment on 13th October 2015 following a disputed counter withdrawal of Kshs 950,000 from a customer's account at the Thika Road Mall Branch. She sought declarations of wrongful and unprocedural termination, reinstatement, twelve months' damages, leave allowance, salary to retirement and gratuity. The Court framed four issues: procedural fairness, substantive fairness, reliefs and costs. On procedural fairness, the Court found the disciplinary invitation letter of 2nd October 2015 did not set out the charges against the Claimant, and the disciplinary committee never explained charges to her, breaching the mandatory requirements of Section 41 of the Employment Act and the principles of natural justice; however, the Court declined to find the six days' notice insufficient as this was not pleaded or proved. On substantive fairness, the Respondent failed to specify the regulations and cash procedures breached, and produced only sketchy evidence on whether a fraud memo popped up on the system at the material time; since authorization by the supervisor Judy Kinoti was undisputed, the Court held the Respondent failed to discharge its burden under Sections 43 and 45, rendering the termination substantively unfair. Reinstatement was refused as more than three years had elapsed. The Court awarded compensation of eight months' gross salary (Kshs 682,728) under Section 49(1)(c), with interest at court rates and costs of the suit. Claims for salary up to retirement, gratuity and leave allowance for 2016 and 2017 were declined. Judgment was delivered virtually at Nairobi on 20th January 2023 by Ocharo Kebira, Judge.

Key legal issues

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01

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair because the disciplinary invitation letter did not set out any charges or accusations against the Claimant, and the disciplinary committee did not explain the charges to her.

Reasoning

Section 41 of the Employment Act mandatorily requires an employer to notify the employee of the grounds for contemplated termination and hear her. The invitation letter of 2nd October 2015 was captioned 'Notification of interview arrangements' and did not disclose the specific charges. The Court relied on Kori Erick Ng'ang'a v University of Nairobi and Geothermal Development Company v Attorney General to hold that notice must be sufficiently precise. However, the Court declined to find the six days' notice insufficient since insufficiency of notice in time terms was not pleaded or proved.

p. 9
02

Whether the termination was substantively fair

Holding

The termination was substantively unfair; the Respondent failed to prove valid and fair reasons under Sections 43 and 45.

Reasoning

The termination letter cited negligence and failure to adhere to laid down regulations and cash procedures, but the Respondent did not specify which regulations or procedures were breached, even in the termination letter. The evidence that a memo flagged on the account popped up at the time of the transaction was too sketchy; the Respondent's witness could not confirm whether it did. Further, the authorization by Judy Kinoti was undisputed, making it difficult to hold the Claimant alone responsible.

p. 10
03

Reliefs available to the Claimant

Holding

Declaration of unfair termination granted; compensation of 8 months' gross salary (Kshs 682,728) plus interest and costs; reinstatement, salary to retirement, gratuity and leave allowance for 2016/2017 refused.

Reasoning

Reinstatement was barred by the three-year rule under the Employment Act. Compensation under Section 49(1)(c) was discretionary, and the Court awarded 8 months' gross salary considering the circumstances of the termination and the deviation from substantive and procedural fairness. Claims for salary up to retirement, gratuity (non-contractual) and post-termination leave allowance were declined for lack of basis.

p. 11
04

Whether the six days' notice of the disciplinary hearing was insufficient

Holding

The Court declined to hold the six days' notice insufficient because insufficiency of notice in time terms was not pleaded and the CBA relied upon was not produced.

Reasoning

Although the Claimant argued that the six days' notice was too short and contrary to the CBA, she did not plead insufficiency of notice in her pleadings, and neither party placed the CBA before the Court. Without evidence, the Court declined to make a finding of insufficiency.

p. 9

Legal principles established

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  • The procedure in Section 41 of the Employment Act is mandatory; non-adherence renders a termination unfair
  • An employer must precisely put forth the charges against an employee in a notice to a disciplinary hearing; failure to do so violates Section 41 and the principles of natural justice
  • The employer bears the burden under Sections 43 and 45 of the Employment Act to prove the reasons for termination and that they were valid and fair; failure to specify the regulations breached means the reason is not established
  • This Court lacks authority to grant reinstatement after three years from the date of termination
  • A compensatory award under Section 49(1) of the Employment Act is discretionary and capped at twelve months' gross salary
  • Gratuity must be contractual to be awarded

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was both procedurally and substantively unfair
  2. 2.Compensation pursuant to Section 49(1)(c) of the Employment Act of 8 months' gross salary, Kshs 682,728
  3. 3.Interest on the compensation at Court rates from the date of judgment till full payment
  4. 4.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 45(2)(c)
  • Employment Act, 2007Section 45(5)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 35(5)
  • Fair Administrative Actions ActSection 4
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Collective Bargaining Agreement (referred to by the parties)Not specified

Cases cited (6)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Kori Erick Ng'ang'a v The University of Nairobi
    [2019] eKLR
  • Geothermal Development Company Limited v Attorney General & 3 others
    [2013] eKLR
  • Mwangi Stephen Muriithi v National Land Commission & 3 others
    Petition No 100 of 2017 [2018] eKLR
  • National Bank of Kenya v Samuel Mutonya
    C.A. 118 of 2017 [2019] eKLR
  • Kenya Plantation & Agricultural Workers Union v Sotik Highlands Tea Estate Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5), 49(1)) over an unfair termination claim

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, "Waweru v Barlcays Bank of Kenya (Cause 748 of 2017) [2023] KEELRC 133 (KLR)", Case Analysis (2023). Cause No 748 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/133/eng@2023-01-20

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