Acquittal of an employee of a criminal offence does not exonerate him/her from all culpability for the employment offence

Banking, Insurance and Finance Union (Kenya) v Consolidated Bank of Kenya limited

Industrial Court at Nairobi

Cause No. 1944 of 2012

Brief Facts
The Claimant filed the Statement of Claim on behalf of its member grievant who was a former employee of the Respondent Bank.  The Grievant had been charged with the offence of preparing to commit a felony and he was subsequently summarily dismissed by the Respondent on the same day.
The Grievant faulted the decision to summarily dismiss him due to the fact that he was acquitted in the above criminal case, he was not issued with a letter to show cause why disciplinary action could not issue, and that he was not heard before his dismissal.
The Claimant sought for reinstatement of the Grievant, all salaries and allowances which the Grievant lost as a result of the uncalled for dismissal, compensation for loss of employment, unfair confinement, unfair prosecution, humiliation and embarrassment in front of the public and his family members. Issues:

1. Whether acquittal in a criminal case against an employee deprived the employer of the right to rely on the same facts relating to the charged offence in justifying summary dismissal of an employee.
2. Whether the Grievant was entitled to reinstatement upon acquittal of a criminal offence.
3. Whether the procedure for summary dismissal was fair and what was the appropriate remedy for the Grievant.

Employment Law-termination of employment-summary dismissal-termination of employment without notice on grounds of gross misconduct-termination of employment on commission or suspicion of an employee having committed a criminal offence against the employer-whether acquittal in a criminal case against an employee deprived the employer of the right to rely on the same facts relating to the charged offence in justifying summary dismissal of an employee-whether the Grievant was entitled to reinstatement upon acquittal of a criminal offence- whether the procedure for summary dismissal was fair and what was the appropriate remedy-Employment Act,2007,sections 41,43,44 and 45.
Held:

1. It was the duty of the employer under sections 43 and 45 of the Employment Act, 2007, to establish the validity and correctness of the reason for termination of employment.
2. Employers were not limited in initiating workplace disciplinary proceedings against employees by police investigations and criminal trials against their employees which could be initiated by public authorities, based on the same facts.
3. The individual contract of employment, the collective agreement, policy and procedure document, the letter of suspension, or the law to which the employment relationship was subject, could join the public criminal process to the private disciplinary process, so that a finding of not guilty in the public process, was imposed on the disciplinary process.
4. In the absence of such workplace instruments, the employer had no reason to wait for the outcome of the criminal process before taking disciplinary action against a delinquent employee, or adopt the outcome of the criminal process as the logical result of the private disciplinary process.
5.  Conversely, an employee under such disciplinary process would have no expectation that the related criminal process, where it culminated in an acquittal, exonerated the employee from all culpability for the employment offence.
6. Police investigations and criminal proceedings were public processes, undertaken by public authorities to safeguard public order while the disciplinary process was essentially a private process, by a private enterprise, aimed at protecting the private interest of the enterprise. The standards of proof in the two processes were different. The criminal trial against the Grievant required the prosecution to establish its case beyond reasonable doubt while at the workplace all the employer was required to have were reasonable and sufficient grounds to act, more or less on the balance of probabilities.
7. The criminal case against the Grievant came to a cropper as did most criminal cases in Kenya, due to poor preservation and presentation of evidence by the prosecuting authorities. The police did not take the cell phone records of the accomplices, photographs which were allowed at the Industrial Court could not be produced at the criminal trial based on evidential restrictions, and evidence of CCTV camera was not led. The Grievant in the end was found not guilty, because of failure by the prosecution to meet the high standards of proof required in the criminal trial.
8. The above pieces of evidence on the other hand, would not be necessary to establish the fairness and validity of termination, under section 43, 44, and, 45 of the Employment Act, 2007. 
9. The finding of a prima facie case against an employee at the criminal trial would be strong evidence of the employee’s culpability for the employment offence at the workplace, considering the lower standards of proof required in the workplace to justify termination. The Court was satisfied that the Respondent had valid reason in summarily dismissing the Grievant from employment, as required under the Employment Act, 2007.
10. Section 41 of the Employment Act, 2007 required the employer to explain to the employee the charges against the employee, in a language understood by the employee. The employee had the right to be accompanied to the disciplinary session by a workmate or shop floor level trade union representative. Any representations made by the employee or the person accompanying him to the session, ought to be considered by the employer before a decision could be taken.
11. The Grievant was not accorded the minimum procedural protections. There was no hearing in any form. Although the Respondent alleged to have issued the Grievant with a letter to show cause why disciplinary action could not be taken against him, the said letter was issued on the same date the Grievant was arrested. There was no opportunity to respond to the letter to show cause because the Grievant was in police custody on the date the letter to show cause, and the letter of summary dismissal was issued.
12. The Respondent misapprehended Clause A5 of the Parties’ CBA, which stipulated that specified acts of gross misconduct, would be punishable through instant dismissal. This did not mean that there would be no hearing; it meant the Grievant would be dismissed instantly, but upon according him a fair hearing.
13. The law no longer contemplated on-the-spot termination of employment on disciplinary grounds, devoid of a hearing. Summary dismissal was defined under section 44 (1) of the Employment Act, 2007 as termination of employment without notice, or with less notice than that to which the employee was entitled, under any statutory provision, or contractual term. The above definition did not suggest that summary dismissal was not preceded by a fair hearing.  Fair hearing ought to always be given, regardless of the length or absence of notice of termination.
14. The terms and conditions of employment prescribed in individual and collective employment agreements ought to be consistent with the Employment Act, 2007. Employees had the right to be heard before termination, regardless of the nature of the termination notice.  The Respondent misapprehended Clause A5 of the CBA to justify on-the-spot termination, without regard to procedural protections granted to the Grievant under Section 41 of the Employment Act, 2007. Hence, the Respondent failed the fairness test, on account of the procedure adopted.
15. The Respondent was able to demonstrate fair and valid reason for termination of the Grievant’s contract of employment. The Grievant conceded that the activities over which he was investigated and charged eroded the qualities of trust and confidence, which were the cornerstones of an employment relationship.
16. Therefore, it would be irresponsible and unreasonable of the Court to grant an order returning the Grievant to the Respondent because his presence there would not foster trust and confidence between him and the Respondent and would by extension, shake the confidence and trust of the Customers in the Respondent Bank.

Claim allowed in part and the Grievant awarded  Kshs.399,440 as compensation for  lack of hearing before summary dismissal.