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ELRCDismissedNot stated in the extract (Memorandum of Claim dated 06.08.2021)· [2024] KEELRC 2529 (KLR)

King’oku v ABSA Bank Kenya PLC (Cause E647 of 2021) [2024] KEELRC 2529 (KLR)

Employment and Labour Relations Court
18 October 2024
4,569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a bank employee's dismissal, confirming employers win when disciplinary process is fair and reasons are proven by text message and documentary evidence.

What this practically means

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Executive summary

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The claimant, a Relationship Manager employed by the respondent bank for about 12 years, challenged his termination on 10.05.2021 following allegations that he solicited a share of sales commissions from two Bancassurance Sales Officers. He sought declarations that the disciplinary process, appeal and termination violated Articles 10 and 47 of the Constitution and section 4 of the Fair Administrative Action Act, compensation of Kshs. 62,388,000, notice pay, a 2021 bonus, damages, a certificate of service, and an injunction restraining conversion of his staff loans to commercial rates. Following a partial mediation settlement on 29.05.2023 (notice pay, leave days and certificate of service, which are not in dispute), six issues went to trial. The court found the termination procedurally fair: the claimant received a show cause notice, was suspended on full pay with an express invitation to access documents and witnesses, was heard with a representative, and appealed. Cross-examination was properly refused at the appeal stage, which was a review and not a re-hearing. On the substance, the court found on a balance of probability that both allegations were established, so the reasons were valid under section 43 of the Employment Act. Discrimination failed for want of a comparator; service pay had no contractual, policy or statutory basis; the loan interest claim was moot and unjustified as the loan contracts provided for reversion to market rates; and the bonus was a discretionary benefit lost on dismissal under policy. The court declined to order unconditional clearing of the claimant's name, holding that a tree lies where it falls and employers must give honest referrals. Judgment was entered for the respondent with each party bearing own costs.

Key legal issues

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01

Whether the termination was procedurally fair under section 41 and 45 of the Employment Act

Holding

The claimant was notified of the allegations, accorded a hearing and an appeal, and complied with sections 41 and 45; the refusal of cross-examination at appeal was proper since the appeal was not a re-hearing

Reasoning

The claimant received a show cause notice, was suspended on full pay with an express invitation to access documents and witnesses, attended a disciplinary hearing with a representative, was terminated, and appealed with a representative. The request to cross-examine witnesses at appeal was an afterthought since the appeal was a review based on material at the initial hearing. The termination letter issued promptly after the hearing, which did not amount to predetermination.

p. 5
02

Whether valid reasons for termination existed under section 43

Holding

On a balance of probability the allegations of soliciting commissions from Winnie and receiving Kshs. 8,000 from Maina were established

Reasoning

Text messages showed a lunch promise tied to Winnie's commissions of about Kshs. 200,000, with Winnie indicating she would pay later. The claimant failed to produce MPESA evidence of contributions or the alleged mother-in-law's medical bills. Both allegations were therefore established on a balance of probability and the reasons for termination were valid and existed at the time of termination.

p. 7
03

Whether discrimination was established

Holding

Not established for want of a comparator

Reasoning

The claimant alleged other Relationship Managers were given lesser punishment but provided no evidence of graduated findings. Designating Winnie as a whistle-blower was within the respondent's prerogative. No basis was shown for compensation for discrimination.

p. 7
04

Whether preferential staff interest rates on loans should continue after termination

Holding

The claim is moot and unjustified since loan contracts provided that preferential rates revert to market rates upon separation

Reasoning

The claimant confirmed having repaid the outstanding loans, rendering the issue moot. He also signed loan contracts acknowledging that preferential rates would revert to market rates upon separation, so the claim was unjustified.

p. 7

Legal principles established

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  • An employer must be truthful in referral reports; a soft-landing agreement is required to defeat adverse referral in cases of termination that are not unfair
  • An administrative appeal in employment disciplinary cases is a review, not a re-hearing; new evidence may only be introduced if it was not available or could not with due diligence be availed at the initial hearing

Court orders

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  1. 1.Judgment entered for the respondent against the claimant
  2. 2.Each party to bear own costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "King’oku v ABSA Bank Kenya PLC (Cause E647 of 2021) [2024] KEELRC 2529 (KLR)", Case Analysis (2024). Not stated in the extract (Memorandum of Claim dated 06.08.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2529/eng@2024-10-18

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