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ELRCPartially AllowedIndustrial Cause ( memorandum of claim filed 26.11.2013)· [2014] KEELRC 1337 (KLR)

Kenya Petroleum Workers Union v Kenya Pipeline Company Limited [2014] KEELRC 1337 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 October 2014
BOByram Ongaya
2,252 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled that when an employee is acquitted of a crime, the employer cannot keep a dismissal based on the same allegations.

What this practically means

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Executive summary

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The claimant union, on behalf of grievants Wycliff Wanambisi Wangila and Justus Kizito Wanyama, both security guards summarily dismissed in October 2005 over an alleged conspiracy to siphon fuel at the respondent's loading bay, sought declarations of wrongful and unfair dismissal, terminal benefits, 12 months' gross salary as compensation, general damages, certificates of service, costs and interest. The respondent denied the claim, arguing neglect of duty and that the suit was time barred. The court framed three issues: limitation, validity of the termination, and remedies. On limitation, it held that although the conciliation proceedings were themselves time barred, the suit was grounded on the criminal court's acquittal order of 2006, attracting the 12-year period under section 4(4) of the Limitation of Actions Act, so the suit was within time. On validity, the court applied its earlier principles in Mathew Kipchumba Koskei v Baringo Teachers SACCO, holding that an employer who pursues the criminal process is bound by its outcome; the grievants' acquittal beyond reasonable doubt meant there was no valid reason for the dismissal, and the dismissal was also procedurally unfair as the grievants were not heard and the dismissal letters were not copied to the union contrary to clause 38 of the collective agreement. On remedies, the court awarded each grievant Kshs.688,200.00 (12 months' gross pay), pension contributions with accrued interest, and certificates of service; general damages were deemed abandoned. Judgment was entered for the claimant with costs against the respondent.

Key legal issues

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01

Limitation of actions

Holding

The suit was not time barred because it was founded on the acquittal order, which attracts a 12-year limitation period under section 4(4) of the Limitation of Actions Act

Reasoning

The conciliation proceedings were themselves time barred and gave no reprieve from the 6-year period for contract claims. However, the acquittal of 14.06/07.2006 grounded the cause of action, and section 4(4) of the Limitation of Actions Act prescribes 12 years for actions based on a court judgment or order, placing the suit within time.

p. 2
02

Validity of the summary dismissal

Holding

There was no valid reason for the summary dismissal as the employer was bound by the criminal court's acquittal of the grievants

Reasoning

Having concluded the disciplinary dismissal, the respondent pursued the criminal process, in which the grievants were acquitted beyond reasonable doubt. Applying principle (c) from Mathew Kipchumba Koskei v Baringo Teachers SACCO, the employer is bound by that outcome and may not sustain punishment on substantially similar grounds.

p. 3
03

Procedural fairness

Holding

The dismissal was procedurally unfair: no hearing was accorded and the dismissal letters were not copied to the union as required by clause 38 of the collective agreement

Reasoning

The grievants testified they were dismissed without an opportunity to defend themselves and without particulars of the alleged theft. The dismissal letters were not copied to the union contrary to clause 38 of the collective agreement, entitling the claimant to a declaration of wrongful and unfair dismissal.

p. 4
04

Remedies for unfair dismissal

Holding

Each grievant was awarded 12 months' gross salary (Kshs.688,200.00), pension contributions with interest, and certificates of service; general damages were deemed abandoned

Reasoning

Section 49 of the Employment Act, 2007 was not in force at the time of the 2005 dismissal, but a 12 months' gross salary award was reasonable in the circumstances, the alternative of future lost earnings not having been pleaded. Terminal benefits were limited to pension contributions with interest as the court was not elaborately guided on the measure.

p. 4

Legal principles established

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  • Where an employer pursues the criminal process after disciplinary dismissal and the employee is exculpated, the employer is bound by that outcome and the employee is entitled to setting aside of the administrative punitive decision and legal remedies
  • Where the employer misconduct allegation amounts to a criminal offence, the employer should stay the administrative disciplinary process pending the outcome of the criminal process

Court orders

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  1. 1.The declaration that the dismissal of the grievants by the respondent was wrongful and unfair
  2. 2.The declaration that the grievants are entitled to be paid the respondent's and their own respective contributions to the pension scheme as at the date of summary dismissal together with all accrued interest running till the date of such payment
  3. 3.The respondent to pay each of the grievants Kshs.688,200.00 by 1.12.2014 failing interest thereon to be payable at court rates from the date of judgment till the date of full payment
  4. 4.The respondent to deliver to each grievant the certificate of service by 1.12.2014
  5. 5.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsection 4(1)
  • Limitation of Actions Actsection 4(4)
  • Penal Codesection 275
  • Criminal Procedure Codesection 210
  • Employment Act, 2007section 49
  • Respondent's collective agreementclause 38
  • Respondent's Staff Rules and Regulations 1992contributory pension scheme

Cases cited (1)

  • Mathew Kipchumba Koskei –Versus- Baringo Teachers SACCO
    [2013] eKLR, Industrial Cause No. 37 of 2013 at Nakuru
Jurisdiction invoked
Referral of a labour dispute to the Industrial Court following conciliation under the applicable labour dispute legislation

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, "Kenya Petroleum Workers Union v Kenya Pipeline Company Limited [2014] KEELRC 1337 (KLR)", Case Analysis (2014). Industrial Cause ( memorandum of claim filed 26.11.2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1337/eng@2014-10-17

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