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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 1860 (KLR)

Kenya Petroleum Workers Union v Kenya Petroleum Refineries Limited [2020] KEELRC 1860 (KLR)

Employment and Labour Relations Court
23 January 2020
LNLINNET NDOLO
2,200 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled four refinery workers were unfairly fired because their employer could not prove they caused the product loss.

What this practically means

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Executive summary

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The Claimant, a trade union for the petroleum and oil sector, brought a claim on behalf of four Grievants - Wycliffe Apollo, Charles Kithi Kazungu, Fredrick Busaka and Jesse Waweru Kung'u - dismissed by the Respondent, a petroleum refinery company, on 26th January 2017 for gross negligence and dereliction of duty following a loss of Automotive Gas Oil and Premium Motor Spirit during product transfers at Mombasa Joint Terminal valued at Kshs. 1,784,196. The Grievants appealed internally without success; a Conciliator appointed by the Minister for Labour declared the dismissals wrongful and unfair and recommended reinstatement, which the Respondent declined to implement. The court framed two issues: whether the dismissal was lawful and fair, and whether the Grievants were entitled to the remedies sought. The court found that although the Respondent may have incurred some loss, it led no evidence connecting the loss to any Grievant, did not prove the drop in the line was abnormal, and did not show how the monetary value of the loss was computed; there was therefore no valid reason for the dismissal under Section 43 of the Employment Act. On procedure, the Grievants were given only one day's notice of the disciplinary hearings, the Union's protest was ignored, and the dismissal fell short of the mandatory requirements of Section 41, rendering it procedurally unfair. Reinstatement was not granted; instead the court awarded compensation of 7 to 12 months' salary per Grievant plus notice pay, with interest at court rates from the date of judgment, and ordered the Respondent to pay the costs of the case.

Key legal issues

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01

Whether there was a valid reason for the dismissal

Holding

No valid reason was established; the Respondent failed to connect the alleged product loss to the Grievants

Reasoning

The Respondent did not lead evidence establishing whether the drop in the product conveyance line resulted from the Grievants' failure or a compromised transmission line, did not prove the drop was abnormal, and did not demonstrate how the monetary value of the alleged loss was computed. No evidence linked any specific loss to any Grievant.

p. 4
02

Whether the procedure adopted was fair under Section 41 of the Employment Act

Holding

The dismissal was procedurally unfair because the Grievants were given one day's notice of the disciplinary hearing and the Union's protest was ignored

Reasoning

Apollo, Kazungu and Busaka were invited by letter dated 16th January 2017 to appear before the Disciplinary Committee on 17th January 2017, and Kung'u was similarly given a day's notice. The Union protested the short notice by e-mail but the Respondent proceeded as scheduled, denying the employees adequate time to prepare their defence.

p. 4
03

What remedies are due

Holding

Compensation equivalent of 7 to 12 months' salary per Grievant plus notice pay, with interest and costs

Reasoning

The court assessed compensation bearing in mind the Grievants' respective periods of service, the Respondent's conduct, the evidence on record and the time lapse since dismissal, awarding between 7 and 12 months' salary in compensation and one month's (three months for Busaka) salary in lieu of notice.

p. 4

Legal principles established

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  • An employer alleging wrongdoing against an employee must adduce evidence connecting the wrongdoing to the employee, as required by Section 43 of the Employment Act
  • Procedural fairness under Section 41 of the Employment Act requires that the employee be served with specific charges and allowed adequate time to prepare and present their defence

Court orders

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  1. 1.1st Grievant Wycliffe Apollo: Kshs. 558,621 being 7 months' salary in compensation and Kshs. 79,803 in lieu of notice, total Kshs. 638,424
  2. 2.2nd Grievant Charles Kithi Kazungu: Kshs. 683,496 being 8 months' salary in compensation and Kshs. 85,437 in lieu of notice, total Kshs. 768,933
  3. 3.3rd Grievant Fredrick Busaka: Kshs. 1,806,384 being 12 months' salary in compensation and Kshs. 451,596 being 3 months' salary in lieu of notice, total Kshs. 2,257,980
  4. 4.4th Grievant Jesse Waweru Kung'u: Kshs. 339,395 being 7 months' salary in compensation and Kshs. 48,485 in lieu of notice, total Kshs. 387,880
  5. 5.Interest at court rates from the date of judgment until payment in full
  6. 6.Respondent to meet the costs of the case
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (claim arising from unfair termination following conciliation under the Minister for Labour)

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 Petroleum Refineries Limited [2020] KEELRC 1860 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1860/eng@2020-01-23

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