Abdulrahman K. Ramadhan & another v Easy Coach Limited [2014] KEELRC 782 (KLR)
The bottom line
#Kenya's Industrial Court ruled Easy Coach unfairly fired two drivers over fuel pilferage, awarding them compensation because the company proved neither a valid reason nor fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Probationary status of the 1st Claimant
The Respondent's assertion that the 1st Claimant was on probation was rejected because the employment contract was not in writing and the probationary period was never set
Section 2 of the Employment Act defines a probationary contract as one of not more than twelve months' duration, in writing and expressly stating it is for a probationary period. Since the 1st Claimant's contract was not reduced into writing and the probationary period was never set, the employer could not impute undocumented terms in its favour.
Effect of discharge vouchers signed by the Claimants
The discharge vouchers did not extinguish the Respondent's liability where the termination itself was irregular
Relying on Simon Muguku Gichigi v Taifa SACCO Society Limited, the Court held that an employer cannot circumvent its obligations by producing a form of discharge executed by the employee; if the law is not followed, no discharge can cure the irregularity. The Court therefore proceeded to examine the substance and procedure of the terminations notwithstanding the vouchers.
Validity of the reason for termination (fuel pilferage allegations)
The Respondent failed to prove a valid reason for terminating the Claimants' employment under Section 43 of the Employment Act
The Court found the investigations inadequate to link the Claimants to pilferage: there was no evidence of how mechanical faults or leakages were ruled out, fuel tanks had tamper-proof seals that were never shown to be broken, and the drivers' only role was to deliver vehicles to a manned fueling point. The excessive consumption was a systemic failure, and shifting the burden of identifying culprits to the Claimants was misplaced.
Procedural fairness of the termination
The procedure did not meet the threshold set by Section 41 of the Employment Act, 2007
The Claimants denied receiving the show cause letters and the Respondent's witness could not say how or when they were served. The Claimants denied attending disciplinary meetings; no panel member testified and the Claimants had not signed the proceedings, so the Court could not establish that disciplinary meetings took place. Curiously, the summary dismissal letters made no mention of the disciplinary proceedings.
Claims for underpayment and overtime
These claims failed; salary was within the minimum wage for bus drivers and standard overtime was paid under the CBA
The Court found the Claimants' salary was within the minimum wage for bus drivers, and that standard overtime was paid as set out in the Collective Bargaining Agreement negotiated between the Respondent and the Claimants' union. The underpayment and overtime claims were therefore dismissed.
Legal principles established
#- The responsibility for drawing employment contracts lies with the employer, and an employer who fails to reduce a contract to writing cannot impute undocumented terms of employment in its favour
- A discharge voucher cannot cure an employer's failure to follow the law in terminating employment
- For a termination to pass the fairness test, the employer must prove both a valid reason and a fair procedure under Section 45(2) of the Employment Act
- An employee cannot be held responsible for a systemic failure within the employer's operations where the employee had no control over the fueling procedure
Court orders
#- 1.Award to 1st Claimant Abdulrahman K. Ramadhan: 3 months' salary in compensation for unfair termination Kshs. 44,445; notice pay shortfall Kshs. 11,810; leave pay Kshs. 2,593; pay recovered during time of absence Kshs. 16,415; total Kshs. 75,263
- 2.Award to 2nd Claimant Joseph Omondi Omusi: 6 months' salary in compensation for unfair termination Kshs. 90,855; notice pay shortfall Kshs. 1,975; leave pay shortfall Kshs. 8,983; pay recovered during time of absence Kshs. 23,440; total Kshs. 125,253
- 3.Both Claimants entitled to certificates of service
- 4.Awards subject to statutory deductions in accordance with Section 49(2) of the Employment Act, 2007
- 5.Claimants awarded the costs of the case
- Jurisdiction invoked
- Employment Act, 2007 (unfair termination claims under Sections 41, 43, 45 and 49 of the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdulrahman K. Ramadhan & another v Easy Coach Limited [2014] KEELRC 782 (KLR)", Case Analysis (2014). Cause No 1016 of 2012 (Consolidated with Cause No 1018 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/782/eng@2014-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.