1.By a Statement of Claim dated July 6, 2018, the Claimant sued the Respondent Bank for unlawful termination of employment. The Respondent filed a Memorandum of Defence dated October 24, 2018, to which the Claimant responded by a Reply dated January 17, 2019.
2.At the trial, the Claimant testified on his own behalf and the Respondent called its Employee Relations Specialist, Anthony Kilonzo. The parties further filed written submissions.
The Claimant’s Case
3.The Claimant states that he was employed by the Respondent by a contract of employment dated October 15, 2013. He worked in various capacities until February 12, 2018, when his employment was terminated.
4.The Claimant further states that he was accused of stealing Kshs 5,000 from a customer of the Respondent on November 24, 2017, an allegation he denied.
5.The Claimant avers that the Respondent subjected him to a biased disciplinary process, where no evidence was tendered to prove the allegation levelled against him.
6.The Claimant’s claim is as follows:a.A declaration that the termination of his employment was unlawful and unfair;b.An order directing the Respondent to pay him gratuity equivalent to one month’s salary for the remainder of the employment period until retirement;c.General damages for unlawful and unfair termination;d.General damages for lost employment opportunity;e.Costs plus interest.
The Respondent’s Case
7.In its Memorandum of Defence dated October 24, 2018 and filed in court on October 25, 2018, the Respondent admits having employed the Claimant as a clerk by a contract of employment dated October 15, 2013.
8.The Respondent states that the Claimant breached his contractual obligations on November 24, 2017, upon which he was taken through a disciplinary process which culminated with termination of his employment on February 12, 2018.
9.The Respondent avers that on November 24, 2017, the Claimant who was deployed as a teller at the Respondent’s Upperhill Branch, processed a transaction for a customer in the sum of Kshs 45,000.
10.The customer is said to have later complained that she had only received Kshs 40,000 from the Claimant. The Claimant was notified of the complaint by an email of the same date and his response was that the transaction was above board and in accordance with the customer’s instructions.
11.The Respondent claims that a scrutiny of the CCTV footage for November 24, 2017 revealed that after the Claimant had reconciled his accounts at the end of the day, he had an extra Kshs 5,000 which he placed behind the printer at his workstation.
12.By letter dated January 3, 2018, the Claimant was invited to a disciplinary hearing on January 18, 2018, which he attended in the company of his union representatives. The meeting was adjourned to January 25, 2018.
13.The Claimant was put to task to explain the source of the Kshs 5,000 and in his defence he stated that this was money returned by the security guard stationed at the ATM which he had received from the Claimant for the purpose of replacing mutilated notes which customers had come to deposit at the ATM.
14.According to the Respondent, the CCTV footage did not show any exchange of money between the Claimant and the security guard inside the Bank premises on November 24, 2017.
15.The Respondent accuses the Claimant of failing to declare the excess of Kshs 5,000 as required by the cash handling policy.
16.The Respondent’s case is that the termination of the Claimant’s employment was substantively and procedurally fair. The Respondent adds that the Claimant was paid his terminal dues.
Findings and Determination
17.There are two (2) issues for determination in this case:a.Whether the termination of the Claimant’s employment was lawful and fair;b.Whether the Claimant is entitled to the remedies sought.
18.The letter terminating the Claimant’s employment is dated 12th February 2018 and states as follows:
19.According to the evidence on record, the termination of the Claimant’s employment was triggered by a complaint from a customer that the Claimant had withheld Kshs 5,000 out of her over the counter cash withdrawal on November 24, 2017. The Claimant denied any wrongdoing in the transaction, insisting that he had served the customer as per instructions.
20.There was however a strange twist in this case as the Claimant was found to have in his possession Kshs 5,000. He was pressed to explain this coincidence and his account was that the Kshs 5,000 in his possession was a refund from a security guard posted at the ATM, which the Claimant had given to the security guard for replacement of mutilated notes brought by customers for deposit at the ATM. The Claimant conceded that the practice of giving his own money for official use was outlawed by the Bank.
21.The Claimant complains that the Respondent had no valid reason for terminating his employment. In determining this issue, the Court is called upon to examine the action taken by an employer against what is reasonable in the circumstances. This is what is referred to as the ‘reasonable responses test’ as set out in the following excerpt from the Halsbury’s Laws of England, 4th Edition, Vol. 16(1B) para 642:
23.In present case, even if the Court were to believe the Claimant’s account that the Kshs 5,000 in his possession was in fact a refund from the security guard posted at the Respondent’s ATM, the Claimant would still be culpable of wrongdoing because he himself told the Court that this practice was not authorised by the Bank.
24.Taking into account the highly regulated environment in which the Respondent and the Claimant operated, I find and hold that the Claimant placed himself in the crosshairs of misconduct and the Respondent had a valid reason for terminating his employment as required by Section 43 of the Employment Act.
25.As to whether the Respondent observed due procedure in executing he termination, the Court notes that the Claimant was notified of the customer complaint and he gave his response. He was also subjected to a disciplinary hearing at which he was accompanied by union officials. I therefore find that the procedural fairness requirements of Section 41 of the Employment Act were satisfied.
26.On the whole, I find and hold that the termination of the Claimant’s employment was substantively and procedurally fair. His claim for general damages is therefore without basis and is disallowed. Similarly, I find no basis for the claim for gratuity which is also disallowed.
27.In the ultimate, the Claimant’s entire claim fails and is dismissed.
28.Each party will bear their own costs.