Patrick Omusula Lupere v Petro Oil Kenya Limited [2014] KEELRC 1507 (KLR)

Industrial Court of Kenya

18 November 2014

MMM. Mbaru

2,074 words in judgment

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The bottom line

A Kenyan employer who stays silent while an employee faces criminal charges risks an unfair termination ruling, even if it claims the employee was dismissed.

What this practically means

Executive summary

The claimant, a Pump Attendant employed by the respondent from 1st December 2005 at its Othaya station, was arrested and charged in April 2012 with theft of fuel and conspiracy following alleged pump tampering. He was acquitted on 18th April 2013, the prosecution having failed to prove the case beyond reasonable doubt. The respondent never suspended him, held a disciplinary hearing, or issued a termination letter; the claimant, though on bail, made no attempt to return to work until after his acquittal. He claimed notice pay, severance pay, housing allowance, unpaid salaries, compensation and reinstatement. The respondent contended the claimant was summarily dismissed for gross misconduct, that he absconded duty while on bail, and that summary dismissal under section 44 of the Employment Act was justified, with no dues owing. The court held that no termination was ever evidenced: the employer was obliged to undertake its internal disciplinary process and to communicate the employee's status in writing, whether by suspension or notice of dismissal, rather than stand back and await the criminal trial outcome. Its silence constituted an unfair labour practice contrary to Article 41 of the Constitution and sections 41, 43 and 45 of the Employment Act. However, the claimant bore 50% of the blame for failing to seek reinstatement during the trial. Reinstatement, severance pay, housing allowance and the claim for days not worked were declined. The court awarded the claimant six months' gross salary as compensation (Kshs. 84,144.00) and one month's notice pay (Kshs. 14,024.00), with each party bearing their own costs.

Key legal issues

Whether there was a lawful termination of the claimant's employment

Holding

There was no valid termination: no suspension, no disciplinary hearing, no written communication of termination or summary dismissal, contrary to sections 41, 43 and 45 of the Employment Act and Article 41 of the Constitution

Reasoning

The claimant was arrested and charged but acquitted after a yearlong trial. During that period the employer took no disciplinary action, issued no suspension and no termination letter. The court held the employer was obliged to run its internal disciplinary process rather than wait for the criminal trial outcome, and its silence amounted to an unfair labour practice under Article 41 of the Constitution.

p. 3

Allocation of responsibility for the impasse between the parties

Holding

The claimant bore 50% of the blame for failing to seek his job back during the criminal trial, which was factored into compensation

Reasoning

Both parties did nothing pending the criminal trial. The claimant did not mitigate his circumstances; he sat back on his rights awaiting the outcome of the criminal trial despite being on bond, while the employer failed to communicate his work status. The court therefore shared blame equally and reflected this in the award of compensation.

p. 3

Appropriate remedies

Holding

Six months' gross salary as compensation for unfair termination and one month's notice pay awarded; reinstatement, severance, housing allowance and unpaid salary claims declined

Reasoning

Reinstatement is discretionary and granted only in rare cases, which this was not. Severance applies only to redundancy; housing allowance was a contractual term already provided; days not worked were unpaid because no services were rendered. The absence of a termination letter to date was considered in computing compensation of six months' gross salary.

p. 4

Legal principles established

Where an employee is to be terminated or summarily dismissed, the reasons must be communicated in writing; failure to do so leaves the employee in limbo
An employer must undertake its internal disciplinary process and cannot stand back awaiting the outcome of a criminal trial
Where an employee absconds or is subject to a criminal trial, the employer must still explain the employee's status in writing, by suspension or notice of dismissal

Court orders

1.A declaration that the termination of the claimant was unfair
2.Compensation awarded at Kshs. 84,144.00
3.Notice pay at Kshs. 14,024.00
4.Each party to bear their own costs

Authorities

Legislation

Employment Actsection 45(2)
Employment Actsection 41
Employment Actsection 43
Employment Actsection 44
Employment Actsection 47(5)
Employment Actsection 40
Constitution of KenyaArticle 41

Cases cited (1)

Mary Chemweno Kiptui versus the Kenya Pipeline Company Limited
[2014] eKLR

Jurisdiction invoked: Employment and labour relations jurisdiction (Industrial Court) under Article 162(2) of the Constitution and the Employment Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Patrick Omusula Lupere v Petro Oil Kenya Limited [2014] KEELRC 1507 (KLR)", Case Analysis (2014). Cause No 1345 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1507/eng@2014-11-18

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