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ELRCDismissedNot stated in the judgment as provided (Memorandum of Claim dated 9th November 2021)· [2023] KEELRC 3396 (KLR)

Saleh v Cooperative Bank of Kenya Limited (Employment and Labour Relations Cause E926 of 2021) [2023] KEELRC 3396 (KLR)

Employment and Labour Relations Court
21 December 2023
5,226 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a bank employee's dismissal because the employer proved both a valid reason and a fair disciplinary process.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent bank from January 2017 initially as a commission-based Agent Banker and later on permanent and pensionable terms, was summarily dismissed on 15th October 2021 for breach of security and unauthorised disclosure of banking information. The Respondent alleged that on 1st February 2021 she accessed the account details of Mbweli Holdings Limited using a colleague's workstation and instructed a teller to issue an account mini statement to a third party, Eucabeth Nyambeki, which statement was later used in legal proceedings against Mbweli Holdings. The Claimant denied issuing a mini statement, asserting she only facilitated a retrieval voucher for a customer confirming a transaction, and challenged the termination as substantively unjustified and procedurally unfair, including complaints that she was given insufficient time to prepare, was not availed witness statements or CCTV footage, and that her appeal was dismissed without a hearing. The court framed three issues: substantive justification, procedural fairness, and entitlement to reliefs. It held the Respondent discharged its burden under sections 43 and 47(5) of the Employment Act: the Claimant's signed disciplinary minutes and appeal admitted instructing the printing of the mini statement, and her claim of a retrieval voucher was contradicted by unchallenged evidence on how vouchers are processed. Her coercion allegation was unsupported. Procedurally, the court found compliance with section 41: notice, evidence accompanying the show cause letter, accompaniment by a colleague, and a right of appeal. The objection to CCTV still images for want of a certificate under Section 106B of the Evidence Act failed, as the Claimant admitted the facts depicted and could not challenge documents admitted without objection. The suit was dismissed with each party bearing their own costs, the court noting the Claimant's years of service.

Key legal issues

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01

Whether the termination was substantially justified

Holding

Yes. The Respondent proved on a balance of probabilities that the Claimant breached security and confidentiality by procuring issuance of a customer's mini statement to a third party, which was used in court to the customer's detriment.

Reasoning

The court applied sections 43 and 45 of the Employment Act and the burden-shifting framework in section 47(5). RW1 testified that a retrieval voucher could not have been issued as the Claimant claimed, since such vouchers emanate from the head office, take 48 hours and require a Kshs 300 fee. The Claimant's signed admissions in the disciplinary hearing minutes and her appeal established that she instructed a teller to print the mini statement. Her coercion allegation was unsupported by evidence.

p. 10
02

Whether the termination was procedurally fair

Holding

Yes. The Respondent complied with section 41 of the Employment Act.

Reasoning

The Claimant received a show cause letter accompanied by the supporting evidence, was invited to a disciplinary hearing by letter dated 22nd September 2021 with notice of her right to be accompanied, attended with a companion Dennis Mulewa, signed the minutes, and was informed of the right to appeal. She lodged an appeal which was declined for lack of new grounds. The court found no fault with the process, applying Walter Onuro Ogal v Teachers Service Commission.

p. 11
03

Admissibility of CCTV still images without a certificate of electronic evidence

Holding

The objection failed; the certificate was unnecessary because the Claimant admitted the facts depicted in the images and the images were part of the Show Cause Letter and disciplinary minutes.

Reasoning

The court held that the Respondent relied on the contents of the Show Cause Letter and minutes in which the Claimant admitted the facts depicted in the CCTV footage, and the Claimant confirmed the footage was shown to her at the hearing. Following Trust Bank v Paramount Universal Bank, a party who participated in proceedings where documents were admitted cannot later challenge them. The disciplinary panel, not being a court, was not bound by the Evidence Act.

p. 10

Legal principles established

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  • The employer bears the burden of proving the reason(s) for termination, that the reasons are valid and fair, and that a fair procedure was followed; the employee bears the burden of proving that termination occurred.
  • Fairness of termination requires both substantive justification and procedural fairness.
  • A party who participated in proceedings in which documents were admitted without objection cannot later challenge their admissibility.
  • Where the employee admits the facts depicted in electronic images during a disciplinary hearing, a certificate of electronic evidence under Section 106B of the Evidence Act is not necessary.

Court orders

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  1. 1.The Claimant's suit is dismissed.
  2. 2.Each party to meet their respective costs.
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Articles 41 and 47(5) of the Constitution underpin the labour rights framework applied)

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, "Saleh v Cooperative Bank of Kenya Limited (Employment and Labour Relations Cause E926 of 2021) [2023] KEELRC 3396 (KLR)", Case Analysis (2023). Not stated in the judgment as provided (Memorandum of Claim dated 9th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3396/eng@2023-12-21

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