Absa Bank-Kenya has been ordered to pay its former employee Sh5 million for violating his privacy.
This is after the Employment and Labour Relations Court found that the bank violated the constitutional rights of its former branch manager, Thomas Mwangi.
Justice Monica Mbaru, sitting in Mombasa on October 1, ruled that even in employment, protection of the employee's privacy is imperative.
The court noted that the bank engaged a private investigator into Mr Mwangi’s personal and private conduct, while he was on suspension by following him in public, restaurants and pubs and demanding to be supplied by different establishments with information in violation of his rights.
Mr Mwangi was a senior branch manager at the bank’s Nkrumah Road branch, in Mombasa.
Justice Mbaru ruled that where there is a breach of an employee's privacy, an employer cannot justify a position that the court lacks jurisdiction, and then fail to address where there was a need to collect personal data and information unrelated to employment.
“The conduct of the respondent leading into the investigations of the claimant’s private life in the context of matters ongoing at the workplace is not justified, no basis was given for such conduct,” ruled Justice Mbaru.
Justice Mbaru ruled that Mr Mwangi was a senior employee of the bank, and whatever conduct he engaged in after office/work hours, where this was found contrary to his letter of appointment and workplace policy, recourse was to invite him to address.
“Engaging in private investigations and then failing to bring such matters to the claimant to address as an employee was not justified, his constitutional rights under Article 31 (of the constitution) were breached by the respondent,” said Justice Mbaru.
The court noted that Mr Mwangi had served the bank well until matters were brought to his attention through notice to show cause and that internal investigations conducted revealed various breaches, but that did not justify a violation of his privacy rights.
It also ordered the bank to pay Mr Mwangi Sh2.3 million as unpaid bonuses for the year 2022, notice pays Sh647,218 and Sh373,294 unpaid salary increments at 13% from January to May last year.
The court ruled that disciplinary procedures were only initiated against the claimant through the notice to show cause dated March 17, 2023— thus going back to sanction and denying him a benefit accrued backward relating to his performance in 2022 was to engage in unfair labour practices.
It also noted that time taken to address workplace misconduct should not deny Mr Mwangi due benefits, while employment subsisted, and that submissions by the bank that the salary increase was purely discretionary vis-a-vis the records and policies placed before the court are not correct.
However, the court ruled that termination of employment was justified and Mr Mwangi was taken through due process.
It noted that through a notice dated May 26 last year, the bank sacked him because he engaged in irregular and unauthorised overdraft facilities advanced to customers at the Nkrumah Road Branch under his leadership, and that he violated the bank policies and procedures by engaging in irregular lending for two separate customers.
Justice Mbaru further noted that Mr Mwangi was called to account for his conduct and his responses were found unsatisfactory.
The court said that Mr Mwangi admitted to buying a housing unit from a customer without a proper sale agreement which was in conflict of interest and failing to address irregularities concerning the allocation of excesses within his branch which was in breach of the lending procedures.
“Whereas the respondent had a policy on how to recover loan repayments that were in arrears, for the claimant to transact with the customer or a defaulting loan repayment customer, he was bound under the policy on conflict of interest,” ruled the judge.
It also said that Mr Mwangi was invited to a disciplinary hearing and failed to explain his conduct hence found culpable of misconduct, leading to termination of his employment.
“In this case, termination of employment was justified and the claimant was taken through due process,” ruled Justice Mbaru, adding that compensation was not due to him.
The court also noted that Mr Mwangi cannot extricate himself from responsibility and the fiduciary duty held as the branch manager for the bank as such conduct exposed it (bank).
“The court finds the claimant liable for his conduct in failing to undertake his duties properly and as required by the employer,” ruled Justice Mbaru.
The court further noted that the banking sector is sensitive and highly regulated through its policies and the Central Bank of Kenya thus breach of fiduciary duty extends to third parties and the conduct of the claimant justified the sanction taken and termination of employment.
“The bank is finance-sensitive and the position held by the claimant as a branch manager is similar to that of a financial custodian and other valuables,” said Justice Mbaru.
She added that conflict of interest and lapse in the fiduciary duty bestowed on him was capable of affecting the financial position of the respondent and such breach and violation is capable of initiating fraudulent transactions.
