A trial court has ordered the bank not to charge interest rates against staff loans a former employee challenging his dismissal took from the financial institution.
Roy Sylvester Akala moved the court under a certificate of urgency and has sued the institution for wrongful dismissal.
He was employed by the respondent in 2009 as the “Head of Shared Service Centre” and was later promoted to the post of “Director, Back Office and Customer Service” in June, 2011.
Effective January 1, 2016 KCB promoted him to the post of “Director, Operations at Management earning a monthly gross salary of Kshs.1,228,451
owing to his performance and based on his exemplary services coupled with expertise and had applied for and was issued with four (4) staff loans which he was to repay using his salary.
Akala was suspended from work on September 12 2018 for an undefined period of time on the conditions that he be paid at the rate of half salary. He was also to report to the Group Human Resource Director every Friday of the week until the matter is concluded.
In his affidavit he states he received a “Show Cause” letter on the basis of a “Forensic Audit Report”.
“I was instructed to file a response on or before 28th September, 2018 (within two (2) days), ” the affidavit reads.
He states he was summoned to a disciplinary hearing which ” I attended but I was not given an opportunity to adduce or challenge the evidence in support of my case.”
“The Respondents merely relied on the response that I filed without the benefit of interrogating the Forensic Audit Report, and declined to furnish me with the Forensic Investigations Report,” Akala says.
Akala says to date he has never seen the forensic report that formed the basis of his dismissal.
His lawyer Eddy Orinda told the court that to date no clear or specific allegations has been made against his client.
According to the veteran labour relations lawyer KCB’s “conduct and decision to summarily dismiss him from employment fails the test of summary dismissal under the Employment Act and Clause 8(b) of the Contract of employment; fails the test of justice and fairness in the circumstances.
Orinda said that since September when Akala was suspended from employment he has not been paid any half salary being the gross sum of Kshs.1,328,693 for the two months that he was on suspension ( being Kshs.664,346.50 per month).
He told the court that KCB had threatened to convert the interest payable on the staff loan to commercial rates effective November 30 2018 and as a result, he will be unable to service the interest payable on the staff loans at commercial rates “having filed the instant suit to challenge the unlawful summary dismissal from employment.”
“The Respondent’s actions aforesaid are prejudicial and continues to be subject my client to injustice and deprivation of his livelihood and that of his family to which he is the sole breadwinner, as a result of the baseless and malicious termination,” Orinda told the court.
Orinda said the summary dismissal based on the contents of a Forensic report which was never shared with his client – and without according the client the right to be heard and explain his defense against the Show Cause Letter was an affront to the rule of law.
Inter-parties hearing is on December 10 2018.
I, ROY SYLVESTER AKALA a resident of Nairobi and P.O Box 61380-00200 NAIROBI hereby make oath and state as follows:
- THAT I am an adult male of sound mind and disposition, the Claimant/Applicant hereinwell versed with the facts hereof hence competent to swear this Affidavit.
- THAT I was employed by the Respondent in the year 2009 as the “Head of Shared Service Centre” and was later promoted to the post of “Director, Back Office and Customer Service” effective 10th June, 2011.
- THATeffective 1st January, 2016 the Respondent promoted me to the post of “Director, Operations at Management Job Level F (MFL)” earning a monthly gross salary of Kshs.1,228,451/=; owing to my performances at my place of work based on my exemplary services coupled with my expertise/skill in the performance of my duties.
- THAT in accordance with my contract of employment, my gross salary for the year 2018 was increased from Kshs.1,228,451/= to Kshs.1,328,693/=
- THAT while employed by the Respondent, I applied for and was issued with four (4) staff loans which I repay using my salary, and I have been diligently repaying the same.
- THAT on 12th September, 2018 and without any good reasons or justifiable cause the Respondent suspended me from employment with immediate effect for an undefined period of time on the conditions that:
- I shall be paid at the rate of half the Claimant’s salary.
- I shall report to the Group Human Resource Director every Friday of the week until the matter is concluded failure to which the Respondent shall take any steps as they deem necessary.
- THAT on 26th September, 2018 I received a Show Cause letter from the Respondent; and the basis of the show cause letter was on a “Forensic Audit Report”. I was instructed to file a response on or before 28th September, 2018 (within two (2) days).
- THAT I honoured the terms of the Suspension notice and in response to the Show Cause letter wrote and served upon the Respondent my reply thereto.
- THAT the Respondent invited me to a Disciplinary hearing on 12th October 2018 which I attended but I was not given an opportunity to adduce or challenge the evidence in support of his case. The Respondents merely relied on the response that I filed without the benefit of interrogating the Forensic Audit Report, and declined to furnish me with the Forensic Investigations Report.
- THAT on 8th November 2018, the Respondent summarily dismissed me from employment on the basis of a Forensic Audit Report which I have never sighted – to date and no clear and unambiguous/specific allegations were ever made against the Claimant.
- THATdissatisfied with the decision of the Respondent, I filed the instant suit challenging summary dismissal from employment.
- THAT I have been advised by my Advocates on record, which advise I believe to be true and sound in that the Respondent’s conduct and decision to summarily dismiss me from employment fails the test of summary dismissal under the Employment Act and Clause 8(b) of the Contract of employment; fails the test of justice and fairness in the circumstances.
- THAT since September 2018 when I was suspended from employment, I have not been paid any half salary being the gross sum of Kshs.1,328,693/= for the two months that I was on suspension ( being Kshs.664,346.50 per month).
- THAT in addition thereto, the Respondent has communicated to me that they shall convert the interest payable on the staff loan to commercial rates effective 30th November 2018.
- THAT as a result, I will be unable to service the interest payable on the staff loans at commercial rates having filed the instant suit to challenge the unlawful summary dismissal from employment.
- THAT the Respondent’s actions aforesaid are prejudicial and I continue to be subjected to injustice and deprivation of his livelihood and that of my family to which I am the sole breadwinner, as a result of the baseless and malicious termination.
- THAT I am apprehensive that unless the orders sought hereby issue immediately, the Respondent will by its above said decisions convert the interest payable to commercial rates and further unnecessarily delay the payment due to me whilst on suspension, to my utter prejudice and in violation of the law and my rights and fundamental freedoms.
- THAT I have a meritorious claim against the Respondent and unless the orders sought herein urgently issue, I shall be condemned to pay interest on the loan facilities at commercial rates for an indefinite period thus defeating the objective of the instant suit.
- THAT no prejudice shall be occasioned to the Respondent if the orders sought herein issue.
- THAT it is just and fair that this application be allowed as prayed to obviate me from any further injustice and hardship.
. Instead, you refused to take any oral evidence and limited yourself to the response letter from our client dated 27th September, 2018.
As at the time of the termination, our client had served the Bank for a period of nine (9) years wherein he had carried out and performed his duties diligently as expected of him, with utmost dedication, skill, expertise and honesty to your own immense satisfaction and to the betterment of the Bank.
You arrived at the decision to summarily terminate our client from employment absent any action that warrants summary dismissal and in the absence of any violation of the terms of the contract of employment between yourself and our client. In particular, and in accordance with Clause 8 (b) of the contract of employment (further particulars of which are within your knowledge) our client was not found guilty of any of the circumstances stated therein to necessitate summary dismissal from employment by yourselves.
Furthermore, you summarily dismissed our client from employment without considering our client’s inputs toward the Bank’s objectives and plans including the fact that our client has been keen on minimizing operational risk management and enhancing customer service at card operations and the general leadership within his department.
The decision to terminate our client is irrational, unprocedural and unjustifiable in the circumstances and constitutes blatant breach of the of the terms of contract and employment laws governing our client’s employment.
Consequently, our client suffered and continues to suffer loss as a result of your actions.
We have firm instructions to demand from you as we hereby do that you immediately and unconditionally rescind the decision to terminate our client from employment as stated in your letter of termination of employment dated 8th November, 2018 and reinstate our client to employment on the same terms and conditions prior to the impugned termination within THREE (3) DAYS from the date of this letter.
TAKE NOTICE that unless you comply with the contents of this letter of demand within the aforementioned period, we have firm instructions to precipitate legal action against you at your risk as to costs and other incidentals, and without any further reference to you.
With this in mind, we draw your attention to the statutory provision pursuant to which compensation is pegged at 12 months salary not forgetting costs of the suit.