A former employee of the Kenya Commercial Bank (KCB) sacked over accusations of violently attacking his girlfriend, who was also a customer of the bank, has lost a Sh14 million damages claim for unfair termination.
The Employment and Labour Relations Court ruled that the bank had valid grounds to dismiss the employee, Mr NM, a retail banker, over alleged gross misconduct and reputational concerns arising from the incident.
However, the court faulted the bank saying the lender ignored mandatory disciplinary procedures before firing the employee and that it breached his constitutional right to a fair hearing.
A KCB bank branch in Nairobi.
Photo credit: File | Nation Media Group
The court found that the lender summarily dismissed the employee before according him a disciplinary hearing as required under the Employment Act, then later attempted to subject him to an appeal and ‘show-cause’ process after the dismissal had already taken effect.
Mr NM worked at KCB’s Changamwe branch in Mombasa since April 2013 as a personal banking representative until October 2023 when he was dismissed.
He sued challenging the termination claiming it was unfair and that no notice was issued as required by law.
He sought more than Sh15.2 million in compensation, including Sh139,850 in notice pay, Sh1.6 million for unfair termination, Sh5 million in service pay and Sh8.3 million for loss of expected future employment.
However, the court awarded Mr NM only one month’s salary in lieu of notice amounting to Sh139,850 and compensation equivalent to two months’ salary totaling Sh279,700.
His claims for service pay, compensation for expected future employment and other damages were rejected.
He told the court that on September 25, 2023, he became involved in a fight with his girlfriend following a personal dispute, leaving her with bodily injuries. Both parties later reported the incident at Changamwe Police Station.
The employee said he was detained by police and released the following day as investigations continued.
He then applied for eight days’ leave from work beginning September 27, 2023, to deal with the fallout from the incident. The leave was approved through the bank’s internal system.
But the following day the bank suspended him to allow investigations into the incident, before summarily dismissing him on October 12.
KCB told the court the employee had brutally attacked a customer identified as Ms EBS with a knife, causing reputational damage to the lender after the media reported the incident.
The bank also accused him of remaining away from duty for more than 14 days and failing to comply with conditions of his suspension requiring him to report to the office every Friday.
The lender defended the dismissal, arguing that the employee’s conduct amounted to gross misconduct under the Employment Act and exposed the institution to reputational risk. It maintained that it followed due process and asked the court to dismiss the claim.
Milimani Law Courts in Nairobi.
Photo credit: File | Nation Media Group
However, the court found that the bank dismissed the employee before giving him an opportunity to defend himself in the presence of another employee as required by law.
The court said KCB only initiated disciplinary proceedings after Mr NM appealed against his dismissal.
The judge said the bank invited him for an appeal hearing in December 2023 and later issued him with a show-cause letter in January 2024 before eventually confirming the dismissal in February.
“In this case, the summary dismissal on October 12, 2023 did not comply with the procedural fairness standard,” the court ruled.
It added: “To dismiss the claimant and then allow him to lodge an appeal only to confirm the termination of employment on a date before the appeal was heard is a direct violation of Article 41 of the Constitution.”
It said the employee admitted engaging in the fight, while the bank had demonstrated that the incident involved one of its customers and attracted public attention.
“The absence from duty, the fight with a customer and being absent from duty for over 14 days are acts of gross misconduct,” the court said.
