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ELRCPartially AllowedCause Number 85 of 2011· [2014] KEELRC 705 (KLR)

Transport And Allied Workers Union [Tawu] v Excel Petroleum Agencies [2014] KEELRC 705 (KLR)

Industrial Court at Nairobi
3 February 2014
JRJames Rika
1,097 words in judgment
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The bottom line

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A Kenyan court ordered an employer to pay a former pump attendant KShs. 160,864 after finding his job ended through redundancy, not misconduct.

What this practically means

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Executive summary

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The Industrial Court at Nairobi, per Rika J, reheard a redundancy dispute between the Transport and Allied Workers Union and Excel Petroleum Agencies after setting aside its own ex parte Award of 5th December 2011 in a ruling of 29th February 2012 on grounds of faulty service. The Grievant, employed as a Pump Attendant, claimed redundancy benefits of Kshs. 160,864 upon closure of the Respondent's petrol business following the end of its Kenol Kobil dealership. The Respondent contended the Grievant was dismissed for fighting a colleague about three months before closure, that his dues were paid, and that records were lost in floods. The Court found the Respondent's evidence inconsistent and unpersuasive: no disciplinary process was proved, no payment evidence adduced, the alleged combatant was not called, and the employer, operating on oral contracts without records, could not be preferred. The Court held the real cause of termination was redundancy of all employees when the dealership ended, entitling the Grievant to redundancy benefits. It upheld the initial Award and ordered payment of Kshs. 160,864 and release of the certificate of service, with no order as to costs.

Key legal issues

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01

Cause of termination

Holding

The real cause of termination was redundancy following the end of the Kenol Kobil dealership, not misconduct

Reasoning

The Respondent alleged the Grievant was dismissed for fighting a colleague, but produced no employment records, no disciplinary process, and did not call the alleged combatant. The owner testified all employees' positions ended when the dealership lapsed. The Court found the misconduct narrative unpersuasive and designed to distract from the true cause.

p. 3
02

Entitlement to redundancy benefits

Holding

The Grievant, declared redundant, was entitled to redundancy benefits and the earlier Award was upheld

Reasoning

Having found the termination was on account of redundancy, the Court held the Grievant entitled to redundancy benefits. No fresh evidence warranted interfering with the initial ex parte Award of Kshs. 160,864 in terminal benefits and compensation, so the findings and decision of the first hearing were upheld.

p. 3

Legal principles established

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  • Where the employer lacks employment records and contracts were oral, the employer's word cannot be readily accepted, and unproven allegations of misconduct unsupported by any disciplinary process cannot displace a finding of redundancy
  • A party granted the opportunity to refute a claim but failing to do so cannot invite the court to disturb an earlier award

Court orders

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  1. 1.The Respondent shall pay to the Claimant a sum of Kshs. 160,864 as detailed in the first Award and release the Claimant's certificate of service forthwith
  2. 2.No order on the costs
Jurisdiction invoked
Referenced dispute in the Industrial Court under its employment and labour relations jurisdiction; specific provision not stated in judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Transport And Allied Workers Union [Tawu] v Excel Petroleum Agencies [2014] KEELRC 705 (KLR)", Case Analysis (2014). Cause Number 85 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/705/eng@2014-02-03

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