A former Equity Bank employee who sued the lender for wrongful dismissal and sought Ksh 920,000 in compensation has lost his case at the Court of Appeal.
Geoffrey Sadat Otana, who worked as an accountant at the bank’s Changamwe branch, had challenged a 2020 decision by the Employment and Labour Relations Court (ELRC) which upheld his dismissal over the loss of Ksh1.2 million from the bank’s ATM.
Otana claimed his termination was unlawful and sought damages, including Ksh 660,000 as damages for wrongful termination, and Ksh 55,000 as one month’s salary in lieu of notice.
He also wanted the court to award him Ksh55,000 for June 2014, and Ksh150,000 to cover the costs of defending the criminal case.
Equity Bank Wins Case Against Former Employee Seeking Ksh 920,000
However, the appellate court, in a ruling dated July 18, dismissed his appeal, maintaining that the bank followed due process.
The judges noted that Otana deliberately failed to attend a disciplinary hearing after being summoned to the bank’s head office in Nairobi.
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The court mentioned that, given his role in a sensitive department, he had a duty to appear before the bank’s management and explain the circumstances surrounding the cash loss.
The court dismissed his explanation — that he avoided the proceedings due to ongoing criminal charges — as unsustainable.
“By failing to present himself at his employer’s Head Office as instructed the Claimant effectively locked himself out of the procedural fairness safeguards provided by the law and he cannot therefore now complain that he was not heard,” the court ruled.
“In the end, we find that this appeal is unmeritorious and must fail. The same is hereby dismissed with costs to the respondent. Consequently, we hereby uphold the Judgment of the ELRC at Mombasa [Ndolo, J.] delivered on 30th July 2020.”
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The court cited a decision by the South African Supreme Court in Old Mutual v Gumbi [2007] SCA 52 [RSA], which held that an employer only needs to offer an employee the chance to be heard before dismissal.
If the employee fails to take that opportunity, the dismissal cannot later be challenged on grounds of procedural unfairness.
The court held that there were clear consequences resulting from the appellant’s failure to attend the disciplinary proceedings.
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It noted that all the appellant needed to do was honour the summons and appear before the respondent to clarify his role in the alleged loss of Ksh1,232,350 under his watch.
At the same time, the court stated that the law is clear that pending criminal proceedings are not a bar to the employer to commence disciplinary proceedings.
The court also observed that the employee failed to demonstrate any prejudice suffered from being notified of the disciplinary proceedings via a phone call instead of in writing.
It concluded that sufficient notice had been given, but the appellant declined to attend the hearing.
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