The Employment and Labour Relations Court has faulted Co-operative Bank of Kenya for failing to follow required procedures when dismissing an employee over poor performance, although it upheld the reason for his termination.
The judge found that Stephen Mwaura’s poor performance justified his dismissal on September 25, 2018, but the bank breached procedure by failing to inform him beforehand that he could be dismissed and to afford him the right to be represented at the hearing.
Mr Mwaura joined the bank as a graduate clerk on September 11, 2008, and initially worked in its Custodial Services and Facilities Management Division. He moved to another division in 2017 after requesting a transfer in February.
He told the court that his performance in the new role was satisfactory, citing his second-quarter 2018 appraisal. He also argued that colleagues with performance concerns were treated more favourably, including one who received extra time and support.
He moved to court in April 2019, challenging his dismissal, which he described as unlawful, unfair and discriminatory. Mr Mwaura argued that his performance in the new role was satisfactory, citing his second-quarter 2018 appraisal, and accused the bank of treating him differently from two colleagues who had also been placed on performance improvement plans.
He said one of the colleagues received additional time and support instead of being dismissed. He sought compensation and an injunction to stop the bank from recovering his outstanding staff loans.
The bank said concerns about his performance dated back to 2010. It said it issued several warning letters in 2017 and 2018, placed him on a Performance Improvement Plan and invited him to a review meeting.
The court upheld the bank’s case that the employee had repeatedly failed to meet performance expectations despite warnings and opportunities to improve.
“The record discloses a sustained pattern of underperformance. The claimant was cautioned as early as 2010, received multiple warning letters between 2017 and 2018, and was placed on a Performance Improvement Plan. He was allowed to address the concerns at the September 2018 meeting,” the judge said.
However, the court found the process did not fully comply with Section 41 of the Employment Act. The judge said the bank should have explained in advance that termination was being considered and afforded Mr Mwaura the right to a representative.
“The termination was procedurally deficient in this respect,” the judge said.
The court rejected Mr Mwaura’s discrimination claim because he had not provided enough evidence about the circumstances, performance concerns or outcomes of the processes involving the two colleagues he cited.
It also dismissed his overtime and service-pay claims, noting evidence that he belonged to the bank’s staff pension scheme.
His claim for notice pay was dismissed because the bank’s evidence that it had paid one month’s salary instead of notice was not challenged. The court also declined his demand for 12 months’ compensation and general damages, but awarded Sh1.1 million compensation for the procedural failure.
The bank also made a Sh2.5 million counterclaim for four staff loans as well as laptop, furniture and residential property loans that remained outstanding when Mwaura left employment. The court upheld the claim, finding the amounts supported by documents and not effectively challenged.
