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ELRCDismissed· [2023] KEELRC 1410 (KLR)

Yarrow v National Bank of Kenya Limited (Cause 50 of 2020) [2023] KEELRC 1410 (KLR)

Employment and Labour Relations Court
9 June 2023
ANAbuodha J. N.
3,706 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 upheld a bank's summary dismissal of an employee for fraud, ruling he wasted his chance to defend himself by skipping the disciplinary process.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent bank as Relationship Manager Islamic Division (Eldoret Branch), sued for unfair termination following summary dismissal on April 26, 2019. He alleged the show cause letter and suspension were malicious and void, that the disciplinary notice was too short, that he was not supplied with evidence, and that he could not attend because of criminal charges instigated by the respondent. The respondent alleged the claimant participated in a fraud syndicate at the Eldoret Branch, opening fraudulent accounts, withdrawing Kshs.287,000 from one such account using falsified instructions while captured on CCTV, and exposing the bank to reputational loss. It maintained it granted postponements of the disciplinary hearing and that the claimant refused to acknowledge notices and failed to attend. At trial, the claimant testified he never attended any disciplinary hearing; the respondent called two witnesses on the investigation and human resources procedures. The Court held that the burden of proving the validity of the reason for termination lies with the employer, applied the reasonable-employer test from British Leyland UK Ltd v Swift, and found the allegations of fraud serious and substantiated by investigation. It held the civil standard of balance of probabilities governs notwithstanding the parallel criminal case, and that the claimant's refusal to respond to the show cause letter and to attend the rescheduled hearing meant he squandered his chance to defend himself. The dismissal was found fair and justified; the claim was dismissed with costs.

Key legal issues

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01

Validity of the reason for dismissal

Holding

The allegations of fraudulent conduct and the Claimant's refusal to address them reasonably justified summary dismissal

Reasoning

The employer, a financial institution where trust and honesty are critical, investigated suspected fraud at the Eldoret Branch. Investigations implicated the Claimant, who withdrew Kshs.287,000 from a fraudulent account while captured on CCTV. The reasonable-employer test applied; the Court found the allegations serious and the dismissal justified.

p. 8
02

Fairness of the disciplinary process

Holding

The Respondent accorded the Claimant a fair hearing; the Claimant squandered his chance to defend himself

Reasoning

The Claimant was issued a show cause letter, failed to respond, was invited to a disciplinary hearing, sought postponement which was granted, then failed to attend the rescheduled hearing and refused to acknowledge the re-issued notice. The employer accommodated his requests and proceeded in his absence.

p. 8
03

Standard of proof in employment claims involving parallel criminal charges

Holding

Civil standard of balance of probabilities applies, not the criminal standard

Reasoning

The Court distinguished between the ongoing criminal prosecution and the civil employment claim, holding that it is not concerned with whether the accusations could sustain a conviction but whether they were reasonably believed and justified dismissal on a balance of probabilities.

p. 8

Legal principles established

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  • In a claim for unfair termination of employment the onus of proving the validity of the reason for termination or dismissal lies with the employer.
  • Where accusations against an employee are also subject to criminal prosecution, the civil test is the balance of probabilities, not proof beyond reasonable doubt.

Court orders

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  1. 1.The claim is dismissed with costs
  2. 2.It is so ordered
Jurisdiction invoked
First-instance claim for unfair termination under the Employment Act (Court's employment jurisdiction)

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, "Yarrow v National Bank of Kenya Limited (Cause 50 of 2020) [2023] KEELRC 1410 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1410/eng@2023-06-09

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