Kenya Petroleum Oil Workers Union v Oryx Service Station & Pebo Filling Station (Cause E072 of 2021) [2024] KEELRC 757 (KLR)
The bottom line
#A Kenyan court ruled employers can't just claim employees deserted duty—they must prove they tried to reach the worker, and unions without recognition agreements can still represent members.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant trade union had locus standi to sue on behalf of the grievants absent a recognition agreement
The Claimant had the requisite locus; union membership suffices for representation, recognition being relevant only to collective bargaining.
The court held the right to join a trade union is constitutionally protected under Article 41 and the Labour Relations Act. Check-off forms bearing the grievants' names were produced, and the grievants testified they individually paid union dues. Recognition of a union is for collective bargaining only, whereas membership goes to representation; a recruiting union acquires organization rights obligating it to protect members' rights.
Whether the grievants' terminations were fair
The termination of both grievants was unlawful and unfair.
The Respondents admitted no disciplinary action was attempted, so compliance with Sections 41, 43, 45 and 47(5) of the Employment Act did not arise. Their assertion that the grievants deserted duty failed because an employer alleging desertion must demonstrate efforts made to contact the employee, per Ronald Nyambu Daudi v Tornado Carriers and Boniface Francis Mwangi v B.O.M Iyego Secondary School.
Whether the grievants were entitled to salary in lieu of notice
Not entitled to notice pay because they deserted duty; the unfairness lay only in the employer's failure to lawfully conclude the separation.
The grievants did not deny deserting duty, and the termination was found unfair only to the extent that the employer failed to follow up on their whereabouts to lawfully bring the employment relationship to an end. Notice pay was therefore declined notwithstanding the finding of unfair termination.
Entitlement to leave pay, public holidays and underpayment arrears
Leave pay and public holiday pay awarded; underpayment awarded as per the labour officer's report, limited to three years under Section 90 of the Employment Act.
The Respondents, as custodians of employee records, produced no pay slips or evidence that leave was taken or public holidays compensated. Underpayment was calculated on the labour officer's report because the Respondents did not show what they actually paid; the claim was limited to three years back from the filing of suit, the earlier portion being statute-barred.
Compensation for unfair termination under Section 49 of the Employment Act
Three months' salary awarded as compensation, reflecting the grievants' contribution to their own termination.
The finding of unfair termination entitled the Claimant to remedies under Section 49. Applying the Section 49(4) factors as set out in Alphonce Maghanga Mwachanya v Operation 680 Limited, the court found the grievants largely contributed to their own termination and therefore awarded a reduced compensation of three months' salary each.
Legal principles established
#- Recognition of a trade union is for purposes only of collective bargaining, while membership to a union goes to representation; absence of a recognition agreement does not curtail a member's right to be represented by their union.
- An employer alleging desertion must demonstrate efforts made to reach out to the employee; it is not enough to simply state that the employee deserted duty.
- Respondents are the custodians of employee records and bear the consequences of not producing records of leave taken and payment of public holidays worked.
Court orders
#- 1.In respect of the 1st Grievant: Leave days Kshs 39,806.55/=; Public Holidays Kshs 21,798.60/=; 3 months compensation Kshs 54,970.95/=; Underpayment arrears Kshs 107,491/=; Total: Kshs 224,067
- 2.In respect of the 2nd Grievant: Leave days Kshs 18,323/=; Public Holidays (30) Kshs 21,796/=; Underpayments Kshs 115,991/=; 3 months compensation for unfair termination Kshs 56,670/=; Total: Kshs 212,780/=
- 3.Awards made as against both Respondents jointly and severally
- 4.Respondents ordered to issue the grievants with certificates of service
- 5.Respondents shall bear the costs of the suit
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes under the Labour Relations Act and the Employment and Labour Relations Court (Procedure) Rules, as urged by the Claimant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers Union v Oryx Service Station & Pebo Filling Station (Cause E072 of 2021) [2024] KEELRC 757 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/757/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.