Kenya Petroleum Oil Workers’ Union v K.K. Kerosene Distributors Limited & another (Cause E6448 of 2020) [2024] KEELRC 91 (KLR)
The bottom line
#A Kenyan court upheld a fuel attendant's dismissal without a hearing because he admitted the mistake, but the employer still had to pay his unused leave.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant has locus standi in the dispute
- 2.Whether the Grievant's contract was terminated on valid ground under Sections 43 and 45 of the Employment Act
- 3.Whether termination was executed fairly under Sections 41 and 45 of the Employment Act
- 4.Whether the remedies sought are merited
Key legal issues
#Locus standi of the union
The Claimant union has locus standi to represent the Grievant, being the initiator of the conciliation process and holding a certificate of unresolved dispute.
The dispute originated with the union reporting it to the Ministry of Labour, and the Conciliator issued a certificate of unresolved dispute. The Grievant is a union member with a membership card who paid subscriptions directly. A Recognition Agreement is an instrument for collective bargaining, not the source of legal capacity to sue on behalf of members.
Validity of reason for termination
Wrong fueling of a customer's vehicle contrary to a clear, trained and signed policy constituted valid grounds under Sections 43 and 45 of the Employment Act.
The Grievant conceded on cross-examination that he fueled super petrol instead of diesel despite training, colour-coded pumps, and signed instructions. The error caused financial and reputational damage and risked loss of franchise and operating licence. His self-incriminating evidence established the misconduct conclusively.
Fairness of procedure under Section 41
Although no show-cause letter or disciplinary hearing was given, termination procedure was fair because the facts were undisputed and admitted.
A disciplinary hearing is only necessary where facts are contested. The Grievant admitted supplying the wrong fuel, and policy agreed with the Attendants provided for immediate summary dismissal. No hearing could have altered the outcome, so procedure cannot be faulted.
Remedies
Only pro-rata leave pay of 6 months at Kshs. 9,894 and a Certificate of Service were granted; notice, holiday pay, overtime and compensation claims failed.
The Respondents, despite disputing leave entitlement, did not produce leave records required under Section 74(1)(f). Overtime and holiday pay claims failed for want of particulars and proof, the Grievant having no computation and unable to identify specific holidays worked without an attendance register he did not seek.
Legal principles established
#- A trade union need not have a Recognition Agreement or labour contract with an employer to have locus standi to sue on behalf of its members; locus standi derives from the union constitution and the Labour Relations Act.
- Where an employee admits the misconduct and the facts are undisputed, a show-cause letter and disciplinary hearing serve no purpose and failure to hold one does not render termination unfair.
- Where an employer disputes annual leave claims but fails to produce records required under Section 74(1)(f) of the Employment Act, the employee's claim on leave is taken as established.
Court orders
#- 1.The Respondents shall pay to the Claimant pro-rata leave of 6 months at Kshs. 9,894
- 2.Certificate of Service to issue
- 3.No order on the costs
- 4.Interest allowed at court rate, from the date of Judgment, till payment is made in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Court Act following a certificate of unresolved dispute issued by a Conciliator under the Labour Relations Act, 2007
Relief refused
#Declaration that termination was wrongful, un-procedural and unfair
Termination was based on valid reasons and procedure could not be faulted as the Grievant admitted the misconduct
1-month salary in lieu of notice at Kshs. 20,000
Summary dismissal for gross misconduct on valid grounds; notice not payable
12 months' salary compensation for unfair termination at Kshs. 294,000
Termination was fair and lawful; compensation not merited
Public holiday pay over 3 years at Kshs. 62,192
Grievant could not specify the public holidays worked nor seek production of the attendance register
Overtime for 3 years at Kshs. 1,492,992
Grievant could not support his computation or establish the period during which he worked overtime
Costs
No order on the costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Respondents shall pay to the Claimant pro-rata leave of 6 months at Kshs. 9,894.
Certificate of Service to issue.
No order on the costs.
Interest allowed at court rate, from the date of Judgment, till payment is made in full.
Once there was an admission that wrong fueling took place, no amount of show cause and disciplinary hearing, would have altered the outcome.
There is no requirement under the law, that the Claimant should have any form of a labour contract with the Respondents, to have locus standi in representation of its members in Court.
In case there is a dispute on annual leave, an Employer should not make heavy weather of availing annual leave records, to prove its position or disprove the oral evidence of the Employee.
Issues in the judgment
#The judgment contains inconsistent dates for the summary dismissal, pleading dismissal on 29th August 2019 but stating elsewhere that the Grievant was dismissed with effect from 30th August 2020.
The date of the fueling incident is inconsistently stated as 29th August 2020, 29th September 2019 and 28th August 2019 in different paragraphs.
The date of the Certificate of Change of Name is inconsistently given as registered on 15th October 2013 and issued on 15th December 2015.
The claim is stated as having been summarily dismissed on 29th August 2019 while the total claim for 12 months' compensation at Kshs. 294,000 does not align with the pleaded monthly salary of Kshs. 20,000.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers’ Union v K.K. Kerosene Distributors Limited & another (Cause E6448 of 2020) [2024] KEELRC 91 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/91/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.