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ELRCDismissedPetition No 104 of 2017· [2024] KEELRC 476 (KLR)

Mwihia v Barclays Bank of Kenya Limited (Petition 104 of 2017) [2024] KEELRC 476 (KLR)

Employment and Labour Relations Court of Kenya
29 February 2024
4,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, formerly employed by the Respondent bank as a Tax and Capital Planning Manager until her termination on 8th March 2017, petitioned the Employment and Labour Relations Court alleging unfair termination, discrimination on account of her bipolar medical condition, and violation of her constitutional rights including human dignity and fair administrative action. She sought declarations, twelve months' compensation, notice pay, unpaid leave days, damages for loss of career, general and aggravated damages, continued preferential staff loan rates or a 40% discount on early repayment, and costs. The Respondent maintained that the termination was for poor performance in accordance with her contract and its performance review policies, that due process was followed through capability hearings, warnings, a show cause letter and an appeal, and that her medical condition never arose during the disciplinary process. The court framed three issues: whether the reasons for termination were justified, whether due process was followed, and whether the reliefs were merited. Applying the high burden on employers in poor-performance terminations, the court found the Respondent had appraisal systems in place, had put the Petitioner on a Performance Accelerator Plan, issued warnings, and afforded her hearings and an appeal, satisfying sections 41 and the substantive fairness requirements of the Employment Act. Discrimination was not proved, as the medical condition was not referenced in the hearing minutes and the Petitioner herself said it had not affected her work. The claim to preferential loan rates failed under clause 2(d) of the loan terms, though interest was not backdated. The Petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the reasons for termination were justified

Holding

Yes - valid grounds of poor performance were demonstrated, with performance appraisal systems and improvement efforts in place

Reasoning

The court applied the high burden on employers in poor-performance terminations. It noted the contractual performance review clause, the appraisals showing declining ratings, the Performance Accelerator Plan, emails identifying deficient areas, the final warning, and the failed improvement efforts. On this evidence the Respondent discharged its burden of showing valid reason under the Employment Act.

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02

Whether due process was followed before termination

Holding

Yes - the Respondent complied with section 41 of the Employment Act through capability hearings, show cause letter, response, and appeal

Reasoning

The court reviewed the warning letter, show cause letter, the Petitioner's detailed response, capability hearings and the appeal process, and found the process satisfied section 41. The allegation that Grace Muamba sat on both panels did not establish bias because the disciplinary policy manual was silent on panel composition and the Petitioner never objected to the composition at the time.

p. 10
03

Whether the Petitioner was discriminated against on account of her bipolar condition

Holding

No - the medical condition was not a factor in the termination and discrimination was not proved

Reasoning

The court examined the capability hearing minutes and found no reference to the Petitioner's medical condition apart from sick leave. The Petitioner herself stated in her show-cause response that the condition had not affected her deliverables. The Respondent testified it was unaware the condition impaired her performance, so no discrimination was established.

p. 8
04

Whether the Petitioner was entitled to preferential staff loan interest rates post-termination

Holding

No - the preferential rate contractually ceases on termination; interest runs from the date of judgment only

Reasoning

Clause 2(d) of the Staff Housing Loan Terms provides that the preferential rate ceases immediately employment terminates for whatever reason. Since the termination was fair, the Petitioner is not entitled to the 6% staff rate, but as a concession the adjusted commercial interest was not backdated and commences on the date of judgment.

p. 10

Legal principles established

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  • Where poor performance is the reason for termination, the employer bears a high level of proof and must demonstrate a performance evaluation policy and efforts to address poor performance
  • Preferential staff interest rates cease upon termination of employment where the loan terms so provide

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No order as to costs
  3. 3.Interest on the Respondent's staff loans to commence on the date of judgment and not be backdated

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 29(f) (and other Articles invoked by the Petitioner)
  • Employment ActSection 8
  • Employment ActSection 41
  • Companies Act, Cap 486 Laws of Kenya

Cases cited (3)

  • National Bank of Kenya v Anthony Njue John
    (2017) eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Industrial Cause Number 823 of 2010; (2010) LLR 255 (ICK)
  • Jane Samba Mukala v Oltukai Lodge Limited
    [2010] KLR 225
Jurisdiction invoked
Articles of the Constitution invoked by the Petitioner (including Articles 29(f) and 41), in an employment and labour relations petition under the Employment and Labour Relations Court's 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, "Mwihia v Barclays Bank of Kenya Limited (Petition 104 of 2017) [2024] KEELRC 476 (KLR)", Case Analysis (2024). Petition No 104 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/476/eng@2024-02-29

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