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ELRCDismissedNot stated in excerpt (Memorandum of Claim dated 25th August 2022)· [2024] KEELRC 1932 (KLR)

Banking, Insurance & Finance Union (BIFU) v Guaranty Trust Bank (K) Limited (Cause E606 of 2022) [2024] KEELRC 1932 (KLR)

Employment and Labour Relations Court
26 July 2024
NMNzioki Wa Makau
2,314 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a bank employee's summary dismissal, ruling that joint custodians of cash cannot escape blame by pointing to colleagues' mistakes.

What this practically means

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Executive summary

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The Claimant Union, on behalf of its member Jemima Wambura Gathenya (the Grievant), sued the Respondent Bank after conciliation failed, seeking a declaration that her summary dismissal of 8th December 2021 was unfair, reinstatement, twelve months' salary as compensation (Kshs. 1,302,348/-), general damages of Kshs. 1,500,000/-, notice pay and leave pay. The Grievant, employed as a Teller from 22nd August 2013 and later working in the Cash Management Center, was dismissed over three charges: failure to timely sort cash from branches, failure to make repatriation requests for unfit/mutilated cash to CBK, and failure to confirm differences in CIT cash. The Respondent alleged the failures exposed it to a loss of Kshs. 3,357,450/- and contended the dismissal was substantively and procedurally fair, relying on section 44(4)(c) of the Employment Act and the range of reasonable responses test. The Claimant argued the charges concerned duties not hers, that sorting was the team leader's shared responsibility, and that the dismissal was a witch-hunt. The court held the Grievant, as joint custodian, had a duty to ensure money for repatriation was properly counted and sealed, and that her blaming the cashier was escapism. It found the reasons valid, procedure fair, and the Claimant's reliefs conflicting. The suit was dismissed with no order as to costs, dated and delivered at Nairobi on 26th July 2024 by Nzioki Wa Makau, Judge.

Key legal issues

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01

Validity of reasons for summary dismissal

Holding

The reasons for dismissal (failure to sort/verify cash, failure to request repatriation of unfit notes, failure to confirm CIT differences) were valid; the Grievant was properly held responsible for losses

Reasoning

The Grievant was a joint custodian in the CMC department with a duty to ensure money due for repatriation to CBK was properly counted and sealed. Losses arose from failure to verify bundled funds discovered by a customer. Her reliance on the cashier's mistake and the team leader's role was escapism, since dual custodianship applies jointly.

p. 4
02

Procedural fairness

Holding

The Grievant was accorded due process: show cause letter, invitation to hearing, right to a witness, opportunity to make representations

Reasoning

She was issued a show cause letter dated 27th October 2021, invited to a disciplinary hearing on 4th November 2021 conducted virtually, charges were read to her and she made representations. The minutes were not disputed, and the dismissal letter set out the reasons, complying with section 41.

p. 3
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Burden of proof under section 47(5)

Holding

The Claimant failed to demonstrate that the termination was wrongful and unfair

Reasoning

The Respondent explained the losses found after cash verification and the Grievant's conceded departure from dual-custodianship SOPs. The court was satisfied the employer had valid reasons and followed fair procedure, so no declaration of unfair termination could issue.

p. 4

Legal principles established

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  • An employee cannot escape responsibility for losses in a joint custodianship arrangement by pointing to another employee's fault

Court orders

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  1. 1.Suit dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 41(1) & (2)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44(4)(c)
  • Employment Act, 2007section 45
  • Employment Act, 2007sections 45(2)(a) and 47(5)

Cases cited (7)

  • Cooperative Bank of Kenya Ltd v Banking Insurance and Finance Union Kenya
    Civil Appeal No. 240 of 2018
  • Banking Insurance and Finance Union (K) v The Co-operative Bank of Kenya
    ELRC Cause No. 213 of 2015
  • CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona
    [2015] eKLR
  • Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Limited
    [2014] eKLR (Industrial Cause No. 782 of 2011)
  • Nita Sangari Baldev v Milly Glass Works Limited
    [2019] eKLR
  • Consolata Kemunto Aming'a v Milimani High School
    [2019] eKLR
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (dispute arising from Employment Act, 2007)

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, "Banking, Insurance & Finance Union (BIFU) v Guaranty Trust Bank (K) Limited (Cause E606 of 2022) [2024] KEELRC 1932 (KLR)", Case Analysis (2024). Not stated in excerpt (Memorandum of Claim dated 25th August 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1932/eng@2024-07-26

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