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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 757 (KLR)

Kenya Petroleum Oil Workers Union v Oryx Service Station & Pebo Filling Station (Cause E072 of 2021) [2024] KEELRC 757 (KLR)

Employment and Labour Relations Court
11 April 2024
3,768 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a trade union in the petroleum, oil and gas industry, sued on behalf of two members, pump attendants terminated in 2020, seeking declarations of unfair termination, terminal dues of Kshs 547,924.60 for the 1st grievant and Kshs 392,393.85 for the 2nd grievant, certificates of service, costs and interest. The Respondents contended the 1st grievant resigned by text after declining a transfer to Migori and the 2nd grievant lost company funds while on probation and never returned; they also challenged the union's capacity to sue absent a recognition agreement. The court framed three issues: union membership, fairness of termination, and entitlement to remedies. It held that union recognition concerns collective bargaining only, while membership suffices for representation, so the Claimant had locus. On fairness, the Respondents admitted no disciplinary process was attempted; the court held an employer alleging desertion must demonstrate efforts to contact the employee, and found both terminations unlawful and unfair. However, notice pay was refused because the grievants deserted duty. Leave pay and public holiday pay were awarded as the Respondents, custodians of employee records, adduced no contrary evidence. Underpayment arrears were calculated per the labour officer's report, limited to three years under Section 90 of the Employment Act, the rest being statute-barred. Compensation of three months' salary each was awarded under Section 49, the grievants having largely contributed to their terminations. Certificates of service were ordered. Total awards: Kshs 224,067 for the 1st grievant and Kshs 212,780 for the 2nd, jointly and severally against both Respondents, who were also ordered to bear the costs of the suit.

Key legal issues

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01

Whether the Claimant trade union had locus standi to sue on behalf of the grievants absent a recognition agreement

Holding

The Claimant had the requisite locus; union membership suffices for representation, recognition being relevant only to collective bargaining.

Reasoning

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.

p. 6
02

Whether the grievants' terminations were fair

Holding

The termination of both grievants was unlawful and unfair.

Reasoning

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.

p. 7
03

Whether the grievants were entitled to salary in lieu of notice

Holding

Not entitled to notice pay because they deserted duty; the unfairness lay only in the employer's failure to lawfully conclude the separation.

Reasoning

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.

p. 7
04

Entitlement to leave pay, public holidays and underpayment arrears

Holding

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.

Reasoning

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.

p. 7
05

Compensation for unfair termination under Section 49 of the Employment Act

Holding

Three months' salary awarded as compensation, reflecting the grievants' contribution to their own termination.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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. 3.Awards made as against both Respondents jointly and severally
  4. 4.Respondents ordered to issue the grievants with certificates of service
  5. 5.Respondents shall bear the costs of the suit

Authorities

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Legislation

  • Employment ActSection 35
  • Employment ActSection 41
  • Employment ActSections 43(1), 43, 45, 47(5)
  • Employment ActSection 28
  • Employment ActSection 49 and 49(4)
  • Employment ActSection 90
  • Constitution of KenyaArticle 41(2)(c)
  • Labour Relations ActSection 52
  • Regulation of Wages (General) (Amendment) Order 2020Not specified
  • Employment and Labour Relations Court (Procedure) RulesNot specified

Cases cited (16)

  • Walter Ogal Anuro vs Teachers Service Commission
    [2013] eKLR
  • National Bank vs Nguru Mutonya
    [2019] eKLR
  • Jane Nyandiko vs Kenya Commercial Bank
    [2017] eKLR
  • Simon Mbithi Mbane vs Inter Security Ltd
    [2018] eKLR
  • Kenya National Private Security Workers Union vs Lavington Security Ltd
    [2013] eKLR
  • Apex Finance International ltd & anor vs Kenya Anti-Corruption Commission
    [2012] eKLR
  • Goodwill & trust Investment vs Witt and Bush ltd
    Nigerian SC 266/2005
  • CMC Aviation ltd vs Cruisair ltd
    1978 KLR
  • interchemie E.A ltd vs Nakuru Veterinary Center Limited
    Nairobi HCC No. 165B of 2000
  • Motrex Knitwear ltd vs Gopites Mills ltd
    Nairobi HCCC NO. 834 of 2007
  • Seth Panyako v. Kenya Union of Domestic, Hotels, Educational Institutions and allied Workers
    Cause No. 1292 of 2011
  • William Gituma v RAA Limited
    [2020] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Boniface Francis Mwangi v B.O.M Iyego Secondary School
    [2019] eKLR
  • Benjamin Langwen v National Environment Management Authority
    (2016) eKLR
  • Alphonce Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
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

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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 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.