The Employment and Labour Relations Court has ruled that employees attending to their duties should be protected by the employer as part of fair labour practices.
Justice Monica Mbaru said that Gulf African Bank let down its employee Said Zamzam by failing to protect him from an angry and agitated customer despite having a policy that provided for the shielding of staff.
She also ruled that allowing every customer to harass and mistreat employees just to retain them (customers) would defeat the very nature of having employees attend to customers at the banking hall.
“Whereas the claimant had a duty to undertake his duties properly, the respondent, as the employer had an equal duty to ensure he worked in a conducive environment. This duty is not apparent in this case,” ruled Justice Mbaru.
The judge who ruled that there were violations of the claimant’s constitutional rights to fair labour practices awarded him Sh1 million as general damages.
“In this case, the rights on the shop floor are not empty, the employee's right at work should be secured, protected, and not violated at will by the employer, third parties bear the same responsibility,” ruled Justice Mbaru.
However, the court also ruled that the claimant, aware of the nature of his employment in a sector highly regulated and customer-centric, failing to offer an unoccupied chair in anticipation of another customer went contrary to what a reasonable employee ought to have done.
“By testifying to the background events between him and the customer, he placed himself directly in violation of the very tenets, values, and principles of the bank,” ruled Justice Mbaru adding that there were justified grounds leading to termination of employment.
The court was told that on September 16, 2021, the bank sacked Mr Zamzam for failing to meet its expectation of providing an excellent customer experience to all customers.
It was alleged that the claimant had denied a customer use of a chair that was placed for use by the customers which was improper and violated the bank’s customer-first philosophy.
Mr Zamzam had sued the bank seeking among others a declaration that the termination of his employment was wrongful and unlawful for being substantive without justification and being procedurally unfair.
The court was told that the claimant knew the customer well and that he was hot-tempered and reacted wildly claiming that that he (the claimant) had disrespected him.
It also heard that the customer was attended to by a colleague of the claimant but could not control the situation as the customer complained loudly forcing the relationship manager to intervene.
Mr Zamzam had told the court that he worked well without any disciplinary incident.
On its part, the bank told the court that the termination of Mr Zamzam’s employment was procedurally and substantively fair.
The bank, which told the court that Mr Zamzam was its employee assigned to an officer of the customer experience after his poor performance as treasury sales officer, also argued that the claims against it were without merit and ought to be dismissed.
The court also noted that the employment letter and contract of the claimant with the respondent was that of the treasury sales officer and there was no letter of reassignment to other duties.
“The change of title and position to the officer customer experience on alleged poor performance was not procedurally addressed with the claimant as required under the Employment Act.
Justice Mbaru also ruled that before taking a sanction against the employee over alleged poor performance, the employer has a legal duty to take the employee through due process and cannot justify acting on its own motion without the involvement of the employee.
“Equally, before changing and reassigning the employee new duties as a result of alleged poor performance, the written approval of the employee is mandatory,” ruled Justice Mbaru.
She further noted that the bank urged the court that there was a review in 2017 and that the claimant performed poorly.
“Instead of being dismissed from employment, he was redeployed, that sweeping of the issue under the carpet resulted in unfair labour practices,” ruled the judge.