Mongate v African Banking Coorporaton Ltd (Employment and Labour Relations Cause 137 of 2018) [2024] KEELRC 1054 (KLR)
The bottom line
#A Kenyan bank fired a customer service officer over fraud but couldn't prove his role in court, so it must pay him over Kshs.1 million in compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved a valid reason for termination under section 43
The respondent failed to discharge the onus; no cogent evidence showed what the claimant failed to do given his job description and the approval roles of the teller and operations manager
The claimant, as customer service officer, had a front desk role limited to assisting customers with counter services under item 8 of his job description. The teller who paid the cheques and the operations manager who approved the transactions neither attended the disciplinary hearing nor testified. Payment approval limits exceeded the claimant's mandate, so blame could not rest on him.
Whether a fair procedure was followed under section 41
The disciplinary process was flawed and did not meet section 41 requirements
Key witnesses to the impugned transactions - the teller and the operations manager - were not present at the hearing and did not adduce evidence against the claimant specifying what verification was humanly possible for him before handing over the customer for approval. The minutes show the claimant explained due diligence but no evidence specified matters he was required to verify.
Rate of repayment of the outstanding staff loan
The claimant is entitled to continue repaying the loan at the staff rate of 8% per annum from the date of termination until payment in full
Having found the termination unlawful, the court held the claimant's failure to service the loan flowed from the respondent's wrongful conduct in denying him employment and income, breaching the loan repayment arrangements. The claimant was to resume payment as the loan stood from the date of termination at the staff rate of 8%.
Quantum of compensation under section 49(1)(c) and (4)
The equivalent of twelve months' gross salary awarded as compensation
The court considered the claimant's about four years of service, the imposition of responsibilities beyond his express mandate, mental anguish, financial loss, listing with the credit bureau and inability to secure alternative banking employment despite two interviews. Reinstatement was neither plausible nor sought.
Legal principles established
#- An employer bears the onus under sections 41, 43 and 45 of the Employment Act of proving both a valid reason for termination and a fair procedure; failure to adduce cogent evidence renders the termination unlawful and unfair.
- An employee may not be saddled with responsibilities not discernible from his job description, and blame for a fraudulent transaction cannot be shifted to him where approval lay with the teller and operations manager.
Court orders
#- 1.Kshs.1,114,200/= in compensation for the unlawful and unfair termination of employment
- 2.A declaration that the outstanding loan payable to the respondent by the claimant is payable at staff rates of 8% from the date of termination till payment in full
- 3.Interest on compensation at court rates from date of judgment till payment in full
- 4.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mongate v African Banking Coorporaton Ltd (Employment and Labour Relations Cause 137 of 2018) [2024] KEELRC 1054 (KLR)", Case Analysis (2024). ELRC Cause No. 137 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1054/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.