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ELRCDismissedCause No E679 of 2021· [2024] KEELRC 2124 (KLR)

Banking, Insurance and Finance Union [Kenya] v Access Bank PLC [Kenya] Limited (Cause E679 of 2021) [2024] KEELRC 2124 (KLR)

Employment and Labour Relations Court
9 August 2024
3,146 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that employees who sign a voluntary early retirement deal are bound by its terms, even if the company handbook promises more.

What this practically means

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Executive summary

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The Claimant Union sued on behalf of four former employees of the Respondent Bank (a tea girl, two messengers and a driver) who exited in February 2019 through a Voluntary Early Retirement Scheme after 28-30 years of service. The Union claimed Kshs. 15,670,554 in underpaid notice and severance, contending that the Respondent's Human Resource Policy, 2014, clause 24.2, entitled them to 3 months' notice and severance at 2 months' basic salary per completed year of service, whereas they received 1 month's notice pay and 1 month's salary per year of service. The Respondent conceded the employment, union membership and payments, but maintained the individually signed VERS offer letters created binding standalone contracts. Justice James Rika framed a single issue: whether the Grievants received the correct terminal benefits under VERS. He held the HR Policy was not contractually binding - it was not incorporated into the Grievants' 1988-1990 contracts, not signed by them, subject to unilateral amendment, and subordinate to the letters of employment by its own clause 2.0. The VERS letters, signed by both sides, were found to be separate binding contracts superseding all other instruments; VERS is consensual termination outside Section 40 of the Employment Act. Allegations of pressure were not pleaded or proved, and the rate paid exceeded the statutory minimum of 15 days' pay per year. The Conciliator's contrary recommendation was rejected as misconceived. The Claim was declined with no order on costs.

Key legal issues

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01

Whether the Human Resource Policy, 2014 (clauses 24 and 25) was contractually enforceable against the Respondent

Holding

The Policy was not incorporated into the Grievants' contracts, was not signed by them, and contained a unilateral right of amendment; it was a guidebook, not a contract.

Reasoning

The Grievants' 1988-1990 contracts did not incorporate the Policy; neither the contracts nor the CBA alluded to it. Section 9(3) of the Employment Act requires employees to sign written contracts. The Policy itself stated letters of employment prevail over it and was amendable every 3 years without employee consent, showing it was never intended to be contractual. The Court found the Policy not part of the contracts, the CBA, or a standing VERS.

p. 5
02

The legal character and effect of the VERS agreement

Holding

VERS is a voluntary standalone contract, not redundancy under Section 40 of the Employment Act, and supersedes pre-existing employment instruments even if less favourable.

Reasoning

All redundancy is involuntary; 'voluntary redundancy' does not exist under Section 40. The Grievants applied for and accepted VERS by signed letters which formed separate binding contracts with all elements of valid contracts. Being a separate agreement, VERS supersedes other contractual terms, and its terms need not match the CBA or HR Policy. The rate paid (1 month per year of service) exceeded the statutory minimum of 15 days per year.

p. 6
03

Whether the Grievants proved coercion, fraud or undue influence in accepting VERS

Holding

No; the allegation of pressure was not pleaded or proved, and acceptance was voluntary and binding.

Reasoning

The Grievants testified half-heartedly that they were pressured by Kiptugen owing to the Bank's financial position, but the Union neither pleaded nor proved coercion, fraud or undue influence. They made deliberate written applications to exit, had served three decades, and were paid benefits above the statutory minimum. The Conciliator's contrary recommendation was based on a misapprehension of the legal architecture of the HR Policy and VERS.

p. 6

Legal principles established

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  • A Human Resource Policy is not automatically contractual; it becomes contractual only if it unambiguously indicates contractual intent, is received and acknowledged, and ideally signed by the Employee.
  • VERS is not governed by the Employment Act; it is a voluntary standalone contract culminating in consensual termination which supersedes other employment instruments.
  • Parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved.

Court orders

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  1. 1.The Claim is declined.
  2. 2.No order on the costs.

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 9[3]
  • Employment ActSection 40
  • Electronic Case Management Practice Directions, 2020Practice Direction 6[2]

Cases cited (3)

  • National Bank of Kenya Limited v. H.B. & 103 Others
    [2017] e-KLR
  • William Barasa Obutiti v. Mumia Sugar Company Limited
    [2006] e-KLR
  • National Bank of Kenya Limited v. Pipeplastic Samkolit [K] Limited and Another
    [2001]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment dispute (Employment and Labour Relations Court Act; dispute reported to the Cabinet Secretary for Labour and conciliation failed)

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 and Finance Union [Kenya] v Access Bank PLC [Kenya] Limited (Cause E679 of 2021) [2024] KEELRC 2124 (KLR)", Case Analysis (2024). Cause No E679 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2124/eng@2024-08-09

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