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ELRCDismissedCause No 1321 of 2018· [2023] KEELRC 1489 (KLR)

Ndumia v Barclays Bank of Kenya Ltd (Cause 1321 of 2018) [2023] KEELRC 1489 (KLR)

Employment and Labour Relations Court
16 June 2023
AMANNA NGIBUINI MWAURE
3,358 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld ABSA Bank's decision to fire a compliance officer for negligence, confirming employers win when they show genuine reasons and fair process.

What this practically means

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Executive summary

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The claimant, employed by the respondent bank since March 2008 and serving as a compliance co-ordinator, was suspended in August 2017 following a customer complaint concerning a top-up loan of Kshs 2,000,000 at the Thika branch. Investigations by the bank's Forensic Investigations Department revealed that the loan documentation checklist had been falsified by photocopying information from another document, the loan amount had been changed three times without disclosure to the customer, and the signatures were inconsistent with the customer's held signatures. The claimant was issued a show cause notice, subjected to a disciplinary hearing on 20 September 2017, and her employment was terminated on 26 September 2017 on grounds of gross misconduct. She claimed unlawful and unfair termination, seeking reinstatement, 12 months' salary as compensation, back pay, notice and leave pay. The court framed three issues: valid reason, procedural fairness, and remedies. Applying sections 43, 45 and 47 of the Employment Act and the 'range of reasonable responses' test, the court found the claimant, as compliance officer, negligent in allowing a falsified checklist through and in failing to ensure customer disclosure. It further found the procedure under section 41 was complied with, including notice, hearing and a right of appeal. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the respondent had valid reason to terminate the claimant's employment

Holding

Yes - the claimant, a compliance officer, was negligent in processing a loan on a falsified checklist and failed to ensure disclosure to the customer

Reasoning

The claimant admitted her compliance role included confirming loan documents were in order. Investigations showed the checklist was falsified and the loan amount changed without disclosure to the customer. The claimant offered no valid explanation why an improperly filled loan document passed through her. The court found she was negligent, satisfying section 45(1) of the Employment Act.

p. 6
02

Whether the termination procedure was fair under section 41 of the Employment Act

Holding

Yes - the claimant was issued a show cause notice, accorded a disciplinary hearing with the right to be accompanied, and a right of appeal

Reasoning

The respondent issued a notice to show cause on 11 September 2017, invited the claimant to a disciplinary hearing on 20 September 2017, advised her of her entitlement to a colleague or union representative, and informed her of her right to appeal. The mandatory process under section 41 requiring notification and hearing before termination was complied with.

p. 6

Legal principles established

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  • The employer must only prove reasons it genuinely believed to exist on a balance of probability
  • The court applies the range of reasonable responses test in reviewing an employer's decision to dismiss

Court orders

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  1. 1.The claimant's claim is dismissed for lack of merit
  2. 2.Each party to meet their own costs

Authorities

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Legislation

  • Employment Actsections 41, 43, 45, 45(1), 47(5)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (3)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2007] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Leyland UK Ltd v Swift
    1981 IRLR
Jurisdiction invoked
First-instance jurisdiction under the Employment Act, 2007 (sections 41, 43, 45 and 47)

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, "Ndumia v Barclays Bank of Kenya Ltd (Cause 1321 of 2018) [2023] KEELRC 1489 (KLR)", Case Analysis (2023). Cause No 1321 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1489/eng@2023-06-16

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