Saleh v Cooperative Bank of Kenya Limited (Employment and Labour Relations Cause E926 of 2021) [2023] KEELRC 3396 (KLR)
The bottom line
#A Kenyan court upheld a bank employee's dismissal because the employer proved both a valid reason and a fair disciplinary process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the Claimant's employment was substantially justified.
- 2.Whether the termination was procedurally fair.
- 3.Whether the Claimant is entitled to the reliefs sort.
Key legal issues
#Whether the termination was substantially justified
Yes. The Respondent proved on a balance of probabilities that the Claimant breached security and confidentiality by procuring issuance of a customer's mini statement to a third party, which was used in court to the customer's detriment.
The court applied sections 43 and 45 of the Employment Act and the burden-shifting framework in section 47(5). RW1 testified that a retrieval voucher could not have been issued as the Claimant claimed, since such vouchers emanate from the head office, take 48 hours and require a Kshs 300 fee. The Claimant's signed admissions in the disciplinary hearing minutes and her appeal established that she instructed a teller to print the mini statement. Her coercion allegation was unsupported by evidence.
Whether the termination was procedurally fair
Yes. The Respondent complied with section 41 of the Employment Act.
The Claimant received a show cause letter accompanied by the supporting evidence, was invited to a disciplinary hearing by letter dated 22nd September 2021 with notice of her right to be accompanied, attended with a companion Dennis Mulewa, signed the minutes, and was informed of the right to appeal. She lodged an appeal which was declined for lack of new grounds. The court found no fault with the process, applying Walter Onuro Ogal v Teachers Service Commission.
Admissibility of CCTV still images without a certificate of electronic evidence
The objection failed; the certificate was unnecessary because the Claimant admitted the facts depicted in the images and the images were part of the Show Cause Letter and disciplinary minutes.
The court held that the Respondent relied on the contents of the Show Cause Letter and minutes in which the Claimant admitted the facts depicted in the CCTV footage, and the Claimant confirmed the footage was shown to her at the hearing. Following Trust Bank v Paramount Universal Bank, a party who participated in proceedings where documents were admitted cannot later challenge them. The disciplinary panel, not being a court, was not bound by the Evidence Act.
Legal principles established
#- The employer bears the burden of proving the reason(s) for termination, that the reasons are valid and fair, and that a fair procedure was followed; the employee bears the burden of proving that termination occurred.
- Fairness of termination requires both substantive justification and procedural fairness.
- A party who participated in proceedings in which documents were admitted without objection cannot later challenge their admissibility.
- Where the employee admits the facts depicted in electronic images during a disciplinary hearing, a certificate of electronic evidence under Section 106B of the Evidence Act is not necessary.
Court orders
#- 1.The Claimant's suit is dismissed.
- 2.Each party to meet their respective costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Articles 41 and 47(5) of the Constitution underpin the labour rights framework applied)
Relief refused
#All reliefs sought by the Claimant for unfair and unprocedural termination
The Claimant failed to prove unfair termination; the dismissal was both substantively justified and procedurally fair.
Costs
Each party will meet their respective costs, at least considering the Claimant served the Respondent for several years.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the court is satisfied the Claimant did not prove a case of unfair and unprocedural termination. The Claimant's suit is therefore dismissed accordingly.
Each party will meet their respective costs at least considering the Claimant served the Respondent for several years.
For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness.
In view of the foregoing, the Respondent has proved that it had valid reasons to dismiss the Claimant's employment on account of the Claimant's conduct. Therefore, the dismissal was substantially justified.
The court finds there is nothing to find fault with the way the Respondent conducted the termination of the Claimant as he satisfied the fairness test which is both substantially and procedurally fair
Accordingly, the certificate of electronic evidence is not necessary in this cause.
Issues in the judgment
#Internal inconsistency in the Claimant's evidence on the disciplinary hearing minutes: she testified she was coerced to sign them but also acknowledged them.
Typographical error in the frame of issues: 'reliefs sort' instead of 'reliefs sought'.
Gender inconsistency in the procedural fairness finding: the singular 'he' refers to the Respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saleh v Cooperative Bank of Kenya Limited (Employment and Labour Relations Cause E926 of 2021) [2023] KEELRC 3396 (KLR)", Case Analysis (2023). Not stated in the judgment as provided (Memorandum of Claim dated 9th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3396/eng@2023-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.