The Employment and Labour Relations Court (ELRC) has ordered I&M Bank Ltd to pay its former credit analyst a total of KES 1.4 million after it declared that his sacking was unfair both substantively and procedurally.
It ruled that I&M Bank did not discharge the burden placed on it by the Employment Act of proving a valid and fair reason for Mr Daddius Mongare’s summary dismissal.
The ELRC, sitting in Mombasa, further ruled that it was satisfied that the process leading to the claimant's (Mr Mongare) summary dismissal fell short of the procedural fairness mandated by the Employment Act.
The money ELRC ordered the bank to pay is inclusive of KES 736,816 as compensation for unfair termination equivalent to seven months' gross salary, KES 295,926 for 84 days of accrued and untaken leave and KES 105,688 one month's gross salary in lieu of notice.
Mr Mongare sued I&M Bank Ltd, alleging unfair and unlawful termination of his employment.
I&M Bank told the court that Mr Mongare, without any legitimate business purpose, authorization, or assignment, accessed a personal joint account of a director of the bank and his spouse using his access privileges as a credit analyst.
It further told the court that shortly thereafter the account holder's spouse was contacted by strangers who appeared to possess sensitive account information.
However, in its decision, the ELRC said that it found Mr Mongare’s explanation for accessing the account, that he was conducting preliminary due diligence on Coast Bottlers Limited in anticipation of a prospective vehicle financing or leasing facility, at the instance of a relationship manager, to be both detailed and plausible.
“It is consistent with the description of his duties as a credit analyst, which included evaluating the risk profile of borrowers and in the ordinary course of such analysis, ascertaining transfers and relationships between a corporate borrower and its directors, this explanation was never seriously dislodged,” ruled the ELRC.
The ELRC also noted that one person capable of independently confirming or denying the claimant's account was neither interviewed during the investigations, on the bank’s witness’ own admission, nor called to testify at a disciplinary hearing or before court.
“It is a well-established evidentiary principle that where a party fails, without explanation, to call a witness peculiarly placed to speak to a fact material to the dispute, particularly a witness within that party's own employ and control, an adverse inference may properly be drawn against that party on the point in issue,” ruled the ELRC.
The ELRC also noted that one of the bank witnesses conceded that the identities of the alleged “strangers” who purportedly called the customer were never established and that the complainant customer's own statement was neither incorporated into any investigation report nor placed in evidence before it.
It was also conceded by the witness, the ELRC noted, that people other than the claimant also accessed the same account on the material day, without similar consequence to them.
The ELRC also noted that if unauthorized access to the account was, without more, the gravamen of the charge, it was telling that the bank made no attempt to investigate or discipline those other persons.
“The explanation offered, that the claimant, unlike the others, “had no reason” to access the account, is difficult to reconcile with the detailed, work-related reason the claimant gave and which stood unrebutted,” said the ELRC.
The court also ruled that the resulting impression was that the bank proceeded on an assumption of guilt rather than on any causal link, established on the evidence between Mr Mongare’s access and the harm the customer reported.
“There is nothing beyond suspicion connecting the claimant to the disclosure of the customer's private details to any third party. No caller was identified, no telephone or KYC record tracing a call back to the claimant was produced and the customer did not testify,” ruled the ELRC.
The court noted that the charge that stood proved, at its highest, was that the claimant accessed the personal account of a senior colleague's family member without an express written assignment to do so.
This, the court noted, is a fact which, standing alone and in the face of a plausible and substantially unrebutted explanation, falls short of proof, on a balance of probabilities, of the willful neglect of duty or the conduct prejudicial to the employer's interests contemplated by the Employment Act.
The court also ruled that the narrative of the customer being contacted by unnamed “strangers” bearing sensitive account information rests on an unproduced customer statement and on unidentified callers.
It further noted that neither the customer nor any of the alleged callers testified before the disciplinary committee or before court and the bank witness confirmed that the customer's own statement was never placed in evidence.
“A sanction as grave as summary dismissal cannot safely be anchored on assertions of this order, untested by cross-examination and unsupported by any primary evidence,” ruled the ELRC.
The court heard that Mr Mongare was employed by the bank in 2019 as a credit analyst, Personal and Business Banking (PBB), based at the bank’s Nyerere Avenue branch, Mombasa and served until May 20, 2024, when his employment was summarily terminated.
Mr Mongare told the court that his duties entailed, among other things, comprehensive analysis of both new and existing corporate customers, evaluation of the risk associated with proposed credit facilities and borrowers, and continuous follow-up on facility applications with relationship managers and other units of the bank.
Mr Mongare told the court that he did not access the account out of idle curiosity, he shared no information from it with any third party and was never told the identity of the “strangers” he was alleged to have supplied information to.
I&M bank told the court that upon a complaint from the affected customer, it retrieved the Finacle systems logs and established that the claimant had accessed the account without any assignment or work-related justification.
It also told the court that on inquiry the claimant “did not provide a good reason” for the access.
The bank told the court that the claimant was suspended “to provide the investigation team an opportunity to establish the truth,” and that the investigations team returned a verdict implicating him.
I&M Bank also told the court that the claimant's unauthorized access to a sensitive customer account, unconnected to any assigned duty, amounted to wilful neglect of duty and conduct prejudicial to it.
