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ELRCPartially AllowedCause No 1538 of 2018· [2023] KEELRC 1446 (KLR)

Kenya Petroleum Workers Union v Ngamu Limited t/a National Oil Chania & another (Cause 1538 of 2018) [2023] KEELRC 1446 (KLR)

Employment and Labour Relations Court
16 June 2023
BOByram Ongaya
1,431 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the employee resigned voluntarily, not unfairly dismissed, awarding him only accrued leave pay and a certificate of service.

What this practically means

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Executive summary

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The claimant union sued on behalf of its member, Francis Otieno Oluoch (the grievant), a pump station supervisor last earning kshs 36,750 per month, alleging unfair (later pleaded as constructive) termination following audit queries in which the employer sought to recover about kshs 9.68 million in stock losses, unaccounted cash and debts. The grievant was sent on compulsory leave in September 2017, answered the audit queries, and on October 24, 2017 wrote resigning effective October 30, 2017, offering to offset one month's accrued leave in lieu of notice. The respondent maintained the grievant resigned voluntarily and that the 2nd respondent was not a proper party. The Court held the contract terminated by voluntary resignation; the claim of unfair constructive termination was misconceived as no fundamental breach by the employer was attributed to the resignation. Reinstatement was irreconcilable with resignation, notice pay was covered by the grievant's own set-off, and the rest-days claim of kshs 1,248,923 was an unpleaded afterthought. The Court awarded the 132 days' accrued untaken leave at kshs 156,120, ordered issuance of a certificate of service under section 51 of the Employment Act, and directed each party to bear its own costs in light of the amounts the grievant conceded owing under the audit queries. Judgment entered on June 16, 2023 with payment due by August 1, 2023, failing which court-rate interest accrues.

Key legal issues

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01

Nature of termination

Holding

The contract terminated by the grievant's voluntary resignation effective October 30, 2017, not by unfair or constructive dismissal

Reasoning

The grievant resigned by letter dated October 24, 2017 effective October 30, 2017, and confirmed this in his letter of January 29, 2018. He even offered to offset notice with accrued leave. The Court held the constructive termination allegation misconceived because no fundamental breach by the employer was established.

p. 3
02

Reinstatement

Holding

Not available where the employee voluntarily resigned

Reasoning

Reinstatement presupposes a continuing employment relationship contrary to the employee's own act of separation. The Court found the relief logically incompatible with the resignation and rejected it.

p. 3
03

Rest days claim

Holding

Dismissed as unpleaded and an afterthought

Reasoning

The claimant never pleaded particulars of rest days worked, never suggested a basis of calculation given the varying pay over 11 years, and the grievant never raised the claim in his resignation letter or at any time during service.

p. 3
04

Accrued leave

Holding

132 days' accrued untaken leave awarded at kshs 156,120.00

Reasoning

The leave form exhibited showed 132 pending leave days, which the Court awarded as submitted by the claimant.

p. 3
05

Certificate of service

Holding

Entitled under section 51 of the Employment Act

Reasoning

Statutory entitlement on separation regardless of the mode of exit.

p. 3

Legal principles established

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  • A claim for unfair constructive termination fails where the resignation is not attributed to the employer's fundamental breach of the contract of service
  • A claimant cannot resign and simultaneously claim reinstatement
  • An employee is entitled to a certificate of service under section 51 of the Employment Act

Court orders

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  1. 1.The respondent to pay the grievant kshs 156,120.00 by August 1, 2023 failing interest to be payable thereon at Court rates
  2. 2.The respondent to deliver the grievant's certificate of service by August 1, 2023
  3. 3.Each party to bear own costs of the proceedings

Authorities

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Legislation

  • Employment ActSection 51
Jurisdiction invoked
Trade dispute referred following a certificate of unresolved dispute; Employment Act (first-instance employment claim)

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 Ngamu Limited t/a National Oil Chania & another (Cause 1538 of 2018) [2023] KEELRC 1446 (KLR)", Case Analysis (2023). Cause No 1538 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1446/eng@2023-06-16

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