Court upholds dismissal of Access Bank ex-employee

A former employee who sued Access Bank Kenya over her dismissal has had mixed fortunes after the court upheld the bank’s decision but faulted procedure, awarding her limited terminal dues.

Tabitha Nasipwoni Taracha, who joined the institution in November 2006 when it operated as Transnational Bank Limited and rose to the position of ICT officer, was summarily dismissed on March 1, 2016.

She subsequently filed a claim before the Employment and Labour Relations Court in Nairobi, seeking Sh46.9 million in damages, alleging that her dismissal was unlawful and humiliating.

The termination followed a forensic audit conducted by Deloitte and Touche, which identified a series of irregular transactions.

According to court findings, the audit showed that Taracha facilitated cash credits and withdrawals amounting to more than Sh11.6 million through her personal bank account over a sustained period.

The bank maintained that she voluntarily admitted involvement in the transactions, while the claimant told the court that her admission had been extracted under duress.

In a judgment delivered on Monday, Justice Nduma Nderi held that although there was evidence of employee misconduct, the disciplinary process adopted by the bank did not meet procedural fairness standards.

The court found that the claimant had been summoned to a meeting without prior notice of the allegations against her and without being informed of her right to representation.

The judge observed that even where serious allegations arise, an employer is required to clearly communicate the charges and the possible consequences if no satisfactory explanation is offered.

Despite those procedural shortcomings, the court concluded that the bank had established a valid reason for the summary dismissal.

Justice Nderi found that the evidence against the claimant, including her handwritten admission and supporting bank statements, was sufficient to justify termination.

The court noted that her ICT expertise had enabled concealment of the transactions from immediate detection.

It, therefore, held that the employer had discharged its legal burden of proof, notwithstanding the absence of a formal notice to show cause or recorded minutes of the disciplinary meeting.

However, the court also found that the bank remained liable for certain outstanding employment dues.

It was not disputed that Taracha had not been paid her February 2016 salary and compensation for 28 days of accrued leave.

Justice Nderi ordered the bank to pay Sh326,000 in respect of those entitlements and to issue a certificate of service within 30 days.

The claimant’s broader claims, including exemplary damages and projected loss of earnings calculated up to retirement age, were dismissed. The court held that she had failed, under Sections 107 and 108 of the Evidence Act, to demonstrate that the summary dismissal was unlawful or unfair.

Given the mixed outcome, the court directed that each party bear its own legal costs.