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ELRCDismissedCause No 560 of 2019· [2023] KEELRC 953 (KLR)

Oyengo v Aggreko International Power Projects Ltd (Cause 560 of 2019) [2023] KEELRC 953 (KLR)

Employment and Labour Relations Court
27 April 2023
LNLinnet Ndolo
2,300 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 upheld a technician's dismissal for negligence because his employer both had a valid reason and followed fair disciplinary procedure.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Generator Technician, sued for wrongful and unfair dismissal following his summary dismissal on August 31, 2017. The dismissal arose from his supervision of the decommissioning of the Respondent's equipment at the Mumias Sugar Complex in Kakamega, where a generator was damaged during lifting/loading and fuel spilled from an unsecured fuel tank. The Respondent maintained the dismissal was for gross misconduct following a fair disciplinary process under the Employment Act. The Court framed two issues: whether the dismissal was lawful and fair, and whether the Claimant was entitled to the remedies sought. Applying the reasonable responses test from British Leyland UK Ltd v Swift, as restated by the Court of Appeal in Samuel Kalomit Murkomen v Telkom Kenya Limited, the Court held it must not substitute its own decision for the employer's. The Court found the Claimant negligent in his assigned duties, resulting in loss to the employer and release of harmful substances into the environment, and therefore a valid reason for termination under Section 43 of the Employment Act existed. On procedure, the Claimant received a show cause letter, responded, participated fully in a disciplinary hearing, signed the minutes, and declined to appeal, satisfying Section 41. Overtime and service pay claims also failed for lack of particulars and because the Claimant contributed to NSSF. The entire claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Respondent had a valid reason for the dismissal under Section 43 of the Employment Act

Holding

The Respondent had a valid reason; the Claimant was negligent in handling the decommissioning duties leading to loss and environmental harm

Reasoning

The Court applied the reasonable responses test from British Leyland UK Ltd v Swift as restated by the Court of Appeal in Samuel Kalomit Murkomen v Telkom Kenya Limited. By his own admission the decommissioning was not done per best practices. The Claimant produced no document showing he raised logistical issues with the employer or called for backup. His negligence led to loss to the employer and release of harmful substances, satisfying Section 43.

p. 6
02

Whether the procedural fairness requirements of Section 41 of the Employment Act were complied with

Holding

Procedural fairness was complied with

Reasoning

The Claimant was issued a show cause letter and responded to it; he was invited to and fully participated in a disciplinary hearing, signed the minutes as a true reflection of the proceedings, and was notified of his right of appeal which he chose not to exercise. These steps satisfied Section 41 of the Employment Act.

p. 6

Legal principles established

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  • In reviewing a dismissal for fairness, the court applies the reasonable responses test and does not substitute its own decision for that of the employer
  • An employee who is a contributing member of NSSF is not entitled to service pay

Court orders

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  1. 1.The Claimant's entire claim fails and is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 41(2)

Cases cited (2)

  • British Leyland UK Ltd v Swift
    [1981] IRLR 91
  • Samuel Kalomit Murkomen v Telkom Kenya Limited
    [2017] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction under the Employment and Labour Relations Court Act

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, "Oyengo v Aggreko International Power Projects Ltd (Cause 560 of 2019) [2023] KEELRC 953 (KLR)", Case Analysis (2023). Cause No 560 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/953/eng@2023-04-27

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