Kenya Commercial Bank Ltd (KCB) has been ordered to pay its former employee, whom it sacked during Covid-19 pandemic, KES 840,000 as compensation for unfair termination of employment.
The Employment and Labour Relations Court (ELRC) which ruled that the sacking of Lorna Chepng’eno was procedurally and substantially unfair also ordered the bank to pay her KES 140,000 as notice pay.
It further ruled that Ms Chepng’eno was sacked without valid reason, notice and being given an opportunity to be heard on allegations levelled against her.
Ms Chepng’eno was stationed at Milimani KCB Branch, Nairobi and the court noted that it was undisputed that as at the time of the onset of Covid-19 in the country, she was on sick leave and that she received communication from the respondent’s operations manager instructing her not to report on duty but to proceed on leave as she was not a critical staff.
“The facts of the case do not demonstrate desertion/absconding duty on the part of the claimant (Ms Chepng’eno), who for good and verifiable reason, of which the employer was aware, could not manage to get transport back to her place of work,” ruled the ELRC.
The ELRC ruled that there was constant communication between Ms Chepng’eno and the bank regarding lack of transport for her from Londiani (Kericho) to Nairobi.
It also noted that claimant reported on duty on June 17, 2020, and was denied access to her workplace and that termination of her employment was confirmed via an Internal Memo dated July 6, 2020, which the court heard was never revoked.
The ELRC further noted that the claimant was never assigned duties after the date of the Internal Memo.
The ELRC agreed with Ms Chepng’eno that her employment was terminated on June 17, 2020, and that the termination was confirmed via the Internal Memo dated July 6, 2020.
“Any subsequent purported disciplinary proceedings were meant to sanitize an already concluded process,” ruled the ELRC.
The claimant told the court that she was employed by KCB as a sales representative and rose over time to the rank of an Assistant Manager and that at the time of termination of employment she was stationed at Milimani KCB Branch.
The ELRC heard that while the claimant was on sick leave she received a text message from the branch’s operations manager asking her not to resume work but to instead proceed on leave as she was not a critical staff.
Ms Chepng’eno told the court that she proceeded on leave during which period she travelled to her permanent residence in Kericho.
She said that while on leave, the government issued directives on containment of spread of Covid-19, restricting movement in and out of Nairobi Metropolitan area for 21 days.
The claimant said that in view of the directives she wrote an email to the bank appreciating its offer to issue her with an inter county movement letter and indicating to it (bank) that she was facing transport challenges.
She told the court that the bank issued her with an inter-county movement letter to assist in her travel to Nairobi but despite having the letter, she could not get transport to Nairobi.
The claimant told the court that the government extended cessation of movement and that she wrote an email to the bank communicating her inability to travel to Nairobi and was looking out for alternative solutions including deployment to an alternative branch around her residential area.
She told the court that with the help of a friend who had a private car, she was able to travel to Nairobi and that on reporting to work on June 17, 2020, she was received by the operations manager but was informed by the branch manager that she was neither allowed to be in the branch or touch the bank’s assets or access its systems.
The claimant told the court that she was handed two letters, the one dated May 28 2020 required her to report to work within five days or show cause for her absence, while the other dated June 2 2020 indicated that she had been taken to have deserted employment and that her name had been removed from the payroll for failing to respond to the first letter.
She said that the bank proceeded to remove her from the payroll effective June 2020 without giving her a chance to be heard.
The court heard that vide a memo dated July 6, 2020, addressed to all branch staff, the branch manager communicated that the claimant was no longer an employee of the bank and that her colleagues should not allow her to access the bank premises and systems.
On its part, KCB said that the claimant having failed to travel back to Nairobi despite having been furnished with an inter-county movement letter, it issued her with a show cause letter and a letter informing her that she had been removed from the payroll.
The bank said that removal of the claimant did not amount to termination of her contract employment, and that she was shortly thereafter restored to the payroll and continued receiving her salary for August to December 2020.
KCB said that it issued the claimant with a letter dated November 23, 2020, for a disciplinary hearing but she declined to submit herself to the proceedings.
The bank said that left with no option, it terminated her employment vide a letter dated December 24, 2020.
The ELRC also ordered KCB to issue Ms Chepng’eno with a certificate of service.
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