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ELRCPartially AllowedCause No 68 of 2013· [2013] KEELRC 883 (KLR)

Kenya petroleum oil workers union v Kenya petroleum refineries Ltd [2013] KEELRC 883 (KLR)

Industrial Court of Kenya
8 November 2013
RSRadido Stephen
3,836 words in judgment
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The bottom line

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A Kenyan court found a refinery worker's dismissal justified in substance but procedurally unfair because his union wasn't involved, awarding four months' pay instead of reinstatement.

What this practically means

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Executive summary

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Twalib Okello Odongo, employed by Kenya Petroleum Refineries Ltd since 1995 as a trainee Operator and rising to Operator Technician, and serving as chairman of the Union's refinery branch, had his employment terminated on 5 September 2011. After failed conciliation before the Minister for Labour, the Union pursued the dispute in the Industrial Court. The Union alleged unfair termination: lack of notification and hearing contrary to section 41 of the Employment Act, breach of the Collective Bargaining Agreement, victimisation on account of union activities, absence of valid and fair reasons, and failure to follow the warning system. It sought reinstatement, compensation to retirement, twelve months' wages and general damages. The court separated the reasons given in the verbose termination letter. It found the February 2011 performance and disciplinary process was conducted without the union's involvement, breaching section 41 and the CBA, rendering the termination procedurally unfair. However, the reasons of poor work quality and non-completion of training requirements were proved and the Respondent discharged its statutory burden under sections 43, 45 and 47(5), so the termination was substantively fair. The court held expired warnings cannot be used as progressive disciplinary steps but may be aggravating factors, and the Respondent failed to establish reliance on them. Victimisation was not proved. Reinstatement was refused as unfit; four months' gross wages (Kshs 347,024) were awarded under section 49(4). Claims for compensation to retirement and general damages were dismissed, and each party was ordered to bear its own costs.

Key legal issues

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01

Procedural fairness of the termination

Holding

The termination was procedurally unfair: the union was not involved in the February 2011 performance/disciplinary process as required by section 41 of the Employment Act and the Collective Bargaining Agreement

Reasoning

The court found the February 2011 process served as both a performance assessment and disciplinary process, but there was no evidence the Grievant's union was involved or copied in on the 1 February 2011 letter or the 2 February 2011 meeting. Section 41 requires the employee be accompanied by a fellow employee or shop floor union representative and be heard. The court applied audi alteram partem and found non-compliance.

p. 3
02

Substantive fairness of the termination

Holding

The termination was substantively fair; the Respondent discharged its statutory burden of proving valid and fair reasons

Reasoning

The court separated the reasons in the verbose termination letter. It found the reasons of poor work quality/performance and non-completion of training requirements were proved, while absenteeism, personal insincerity and the expired warnings taken alone were not valid or fair. The Grievant was aware of the rules on completion of tasks and skills, which had been consistently applied, so the Respondent discharged its statutory obligations.

p. 6
03

Effect of expired or cancelled warning letters

Holding

Expired warnings cannot be used as progressive disciplinary steps but may serve as aggravating circumstances in deciding the appropriate sanction; the employer must establish they may be relied upon

Reasoning

The court noted the absence of any statutory provision on the effect of cancelled or expired warnings in unfair dismissal claims, and that the CBA clause was unclear. Most warnings to the Grievant stood cancelled after one year under clause 1.18 of the CBA. The court held they could only be used in aggravation, and the Respondent failed to establish they could be taken into account.

p. 6
04

Victimisation on account of union activities

Holding

The assertion of victimisation due to union position and activities failed for lack of sufficient evidence

Reasoning

The Grievant, who was branch chairman of the Union, alleged the termination was because of his union activities. The court found that no sufficient evidence was placed before it to accept the assertion, and made no further finding on discrimination.

p. 6
05

Appropriate remedy

Holding

Reinstatement refused; four months' gross wages awarded under section 49(4) of the Employment Act

Reasoning

Though reinstatement is a primary remedy, it is qualified by section 12(3)(vii) of the Industrial Court Act. The employment relationship requires mutual trust and confidence, making reinstatement unfit. Considering the thirteen factors in section 49(4), the Conciliator's report and the circumstances and length of service, four months' gross wages was found just.

p. 7

Legal principles established

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  • Expired or cancelled warnings may not be used as progressive disciplinary steps leading to dismissal but may be considered in aggravation when deciding on an appropriate sanction
  • The employer bears the burden under sections 43, 45 and 47(5) of the Employment Act to prove the reasons for termination, their validity and fairness, and to justify the grounds
  • Poor performance relates to the ability to perform the job properly, and must be distinguished from misconduct which addresses behaviour

Court orders

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  1. 1.Award to the Grievant of four months gross wages compensation of Kshs 347,024/-
  2. 2.Dismissal of the prayers for reinstatement, compensation in lieu of foregone years to retirement and general damages
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 49(4)
  • Industrial Court Actsection 12(3)(vii)
  • Evidence Actgeneral
  • Civil Procedure Act and Rulesgeneral
  • Collective Bargaining Agreementclauses 1-18, 1-20(i)
Jurisdiction invoked
Industrial Court Act, section 12 (trade dispute arising from conciliation process)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya petroleum oil workers union v Kenya petroleum refineries Ltd [2013] KEELRC 883 (KLR)", Case Analysis (2013). Cause No 68 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/883/eng@2013-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.