Bor v Absa Bank PLC (Petition E003 of 2023) [2024] KEELRC 1062 (KLR)
The bottom line
#Kenya's Employment Court upheld Absa Bank's dismissal of a branch manager who failed to report fraud, confirming that silence about known fraud justifies termination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the Petitioner was fair and justified.
- 2.Whether the Petitioner's constitutional rights were infringed upon.
- 3.What remedies to grant in the circumstances.
Key legal issues
#Whether the Petitioner had valid reasons for termination - gross negligence in oversight role as Branch Manager and failure to report a fraud
Termination was fair and justified; the Petitioner failed in his duty of reporting and escalating fraud under the Respondent's policy, and the disciplinary process under section 41 of the Employment Act was adhered to
The court examined the termination letter's four allegations and the Cash Operations Procedure Manual. It found the Petitioner was not terminated for delegating call-over duties (that reason did not form part of the termination), and that since no exceptions were raised by the checkers he could not be faulted for failing to note the split transactions. However, the customer's complaint of 4 November 2022 was only reported to ABSA Forensic Investigations on 30 November 2022, breaching the bank's regulations requiring prompt reporting and escalation of fraud.
Whether the Petitioner was afforded a fair disciplinary process
The disciplinary process envisaged under section 41 of the Employment Act was adhered to; the Petitioner admitted being taken through the process, responded to a show cause letter and attended hearings
The court noted the Petitioner was served with a show cause letter dated 4 January 2023 which he responded to, was invited to a disciplinary hearing on 16 January 2023 with a follow-up hearing on 30 January 2023 where he was accompanied by a representative, was heard, found culpable, and his appeal was considered and dismissed.
Whether the Petitioner's constitutional rights were infringed
No constitutional violations established; the petition did not plead with precision the facts pointing to infringement
The court found that having established valid reasons for termination and adherence to due process, there was no merit in the submissions on breach of Articles 27, 28, 29, 47, 48 and 50. The petition failed to set out the facts demonstrating the manner of infringement, echoing the Anarita Karimi Njeru precision threshold urged by the Respondent.
What remedies to grant
The Petitioner is entitled only to a Certificate of Service; all other reliefs refused and the petition dismissed
Since the termination was found fair, justified and procedurally sound, the court declined reinstatement, compensation, notice pay, service pay, damages and declarations, awarding only the certificate of service which is a statutory entitlement independent of the fairness of termination.
Legal principles established
#- An employer proves fair termination by establishing both a valid reason and adherence to fair procedure under section 45(2) of the Employment Act
- A branch manager who fails to escalate and report a known fraud in breach of the employer's policy can be validly terminated
- A party alleging constitutional violation must plead the facts of infringement with precision
Court orders
#- 1.The Petition is dismissed.
- 2.The Respondent shall issue the Petitioner with a Certificate of Service.
- 3.No order of costs - each party to bear own costs (no order of costs made).
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23(1) and 162(2)(a) of the Constitution of Kenya, 2010
Relief refused
#Declarations that the termination decision was flawed and violated the Petitioner's constitutional rights
The court found the termination fair and justified with due process followed
Reinstatement to his former job
Petitioner not entitled to any remedies save certificate of service
12 months' salary compensation under section 49 of the Employment Act
Termination found lawful and justified
One month's salary in lieu of notice
Termination was effected with payment of one month's salary in lieu of notice per the termination letter
Gratuity/service pay
Respondent submitted Petitioner was an NSSF paid-up member and gratuity was not provided in the contract; reliefs rejected with the petition
Written apology in a newspaper, damages for pain and suffering, judicial review orders
Constitutional violations not established as the petition failed to set out facts pointing to infringement
Costs
No order of costs - the petition was dismissed with no order of costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of my findings above, it is apparent that the Petitioner failed in his duty of reporting and escalating a fraud as expected under the Respondent's policy.
The disciplinary process envisaged under section 41 of the Employment Act 2007 was adhered to.
In the petition however, the Petitioner failed to set out the facts pointing to the infringement of his rights.
It is my finding that the Petitioner is not entitled to any of the remedies sought save for issuance of a Certificate of Service.
The Petition must fail and I dismiss it accordingly with no order of costs.
Issues in the judgment
#The judgment refers to the fraud transactions of 19th May 2021 being discovered via a customer complaint made on 4th November 2022, and elsewhere the reply affidavit states the call over reviewers on 'that particular day 19th May, 2021' - the chronology in the judgment contains internal inconsistencies in dates
The Respondent's submissions cite reliefs under 'section 15 of the Labour Relations Act' while the Petition pleads section 15 of the Labour Institutions Act, and the judgment does not resolve the discrepancy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bor v Absa Bank PLC (Petition E003 of 2023) [2024] KEELRC 1062 (KLR)", Case Analysis (2024). Petition dated 10th May, 2023 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1062/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.