Kenya Petroleum Oil Workers Union v Bach Enworld Holdings Limited (Cause E017 of 2020) [2023] KEELRC 563 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot fire a worker for allegedly absconding without first trying to reach them and giving them a chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievant was unfairly terminated
Yes - the manner of separation was an unfair termination as no show cause letter was issued and no hearing accorded
Although the employer pleaded desertion, it adduced no evidence of efforts to contact the grievant. The loss of Kshs. 24,952 and lending money were valid reasons for termination, but the employer neither issued a show cause letter nor gave the grievant an opportunity to be heard, contrary to Sections 41, 43, 45 and 47(5) of the Employment Act. The court therefore found the termination unfair.
Whether the remedies sought were payable
Notice pay, February 2019 salary, underpayment arrears and one month's compensation awarded; leave, public holidays and deduction claims dismissed for want of proof
The court awarded notice pay and the 18 days' February salary as unchallenged. Underpayment was proved against the Regulation of Wages Order for petroleum service station workers. Compensation was reduced to one month because the grievant contributed to his termination. Leave, holiday and deduction claims failed for lack of evidence.
Legal principles established
#- An employer alleging desertion must demonstrate efforts made to contact the employee before treating the employment as terminated
- Even where valid reasons exist, termination without a show cause letter and hearing is unfair under Sections 41 and 45 of the Employment Act
Court orders
#- 1.Declaration that the grievant was unfairly terminated
- 2.One-month salary in lieu of notice at Kshs. 15,000
- 3.18 days salary for February, 2019 at Kshs. 9,000/-
- 4.Compensation for unfair termination at Kshs. 15,000/-
- 5.Salary underpayment of Kshs. 5,368.30/-
- 6.Respondent to bear the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5), 49(4) and 50)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers Union v Bach Enworld Holdings Limited (Cause E017 of 2020) [2023] KEELRC 563 (KLR)", Case Analysis (2023). Cause No E017 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/563/eng@2023-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.