The court has warned employers that they cannot fire workers based on suspicion alone, ordering I and M Bank to compensate a former employee after finding it dismissed him without proving he had done anything wrong or following the proper disciplinary process. The ruling highlights the need for employers to have evidence and observe fair procedures before dismissing staff accused of misconduct.
Consequently, I and M Bank has been ordered to pay a former staff Sh1.1 million after a court ruled that it dismissed him without proving misconduct or right procedures.
The Employment and Labour Relations Court ruled that I and M Bank unfairly dismissed a credit analyst accused of improperly accessing a joint US dollar account belonging to one of its directors and the director’s spouse.
Justice Ocharo Kebira said the termination of Tom Mongare was unfair, as the bank relied on an incomplete investigation that left critical questions unanswered.
Mr Mongare joined I and M Bank in 2019 as a credit analyst in the personal and business banking division at its Mombasa Nyerere Avenue branch. He earned a gross monthly salary of Sh105,688 before his dismissal on May 20, 2024.
The dispute arose from him accessing a joint US dollar account held by one of the bank’s directors, who also serves as group executive director of Coast Bottlers, and the director’s spouse.
The bank argued that the employee had no legitimate business reason to access the account and alleged the customer’s spouse was later contacted by strangers who appeared to possess confidential banking information.
Mr Mongare denied wrongdoing. He told the court he was conducting preliminary due diligence after the bank’s relationship manager informed him Coast Bottlers was considering acquiring vehicles through financing or leasing arrangements that could involve the bank.
He testified that reviewing links between a corporate borrower and its directors formed part of his work as a credit analyst and insisted he never disclosed any customer information to anyone. He told the court that his work required him to verify account turnover and transactions between the company and its directors.
Justice Kebira found the explanation remained largely unchallenged because the relationship manager, identified only as Zadock, was never interviewed during investigations or called to testify despite the bank’s own human resources manager describing him as ‘a vital witness.’
‘It is a well-established evidentiary principle that where a party fails to call a witness peculiarly placed to speak to a fact material to the dispute, the court may draw an adverse inference,’ the judge said.
The court also found no evidence connecting Mr Mongare to the alleged disclosure of confidential information.
‘There is nothing beyond suspicion connecting the claimant to the disclosure of the customer’s private details to any third party,’ the judgment said.
Justice Kebira noted the bank never identified the alleged callers, produced evidence tracing any communication to Mr Mongare or called the customer to testify.
The court further found there were serious procedural failures during the disciplinary process.
It said the bank did not issue a show-cause letter, withheld the investigation report from the employee, fixed a disciplinary hearing while investigations were supposedly continuing and failed to interview a witness central to the employee’s defence.
‘The sensitivity of an allegation, if anything, calls for more scrupulous observance of an employee’s procedural entitlements, not their suspension,’ the judge said.
Justice Kebira also cited contradictory testimony from the bank’s own witnesses over whether other employees had accessed the same account on the material day.
Mr Mongare was awarded notice pay, accrued leave, seven months’ salary as compensation, interest and legal costs. The court also ordered I and M Bank to issue him with a certificate of service.