KPC to pay Sh9.1 million to former employees for unfair sacking

A court has ordered Kenya Pipeline Company (KPC) to pay six former employees Sh9.1 million for unfairly dismissing them almost six years ago.

KPC had accused the six – a driver, four security guards and a technical operator – of stealing its petroleum products in Mombasa.

Justice Byram Ongaya of the Employment and Labour Relations Court also ordered KPC to pay the claimants the money by August 1 or interest would be payable at court rates from the date of the judgment.

Justice Ongaya said KPC’s summary dismissal of the six was substantively and procedurally unfair.

Through lawyer Augustus Wafula, the former employees had told the court that their dismissal was unfair and that KPC did not prove that it had lost any product as alleged.

Justice Ongaya ruled that KPC dismissed the claimants upon an investigation report and other information that they had no knowledge of prior to a hearing before a staff disciplinary committee.

The judge also ruled that it was an unfair labour practice to summarily dismiss the employees because of glaring deficiencies in KPC’s operational systems and requirements.

“The court considers that the claimants were unfairly rendered sacrificial lambs in the whole sad and despicable episode. On a balance of probability, they stand vindicated,” ruled Justice Ongaya.

The court noted that the accusations against the six constituted alleged criminal acts and workplace misconduct.
Justice Ongaya said that it would have been appropriate for KPC to have invoked the criminal justice process rather than attempting to find the employees culpable of a supposed criminal offence through a process it was not properly equipped to undertake.

“KPC failed to show that the reasons for the summary dismissal of the claimants existed and were genuine and fair as envisaged in the Employment Act,” ruled Justice Ongaya.

He noted that the investigation report identified two suspects who were not any of the former employees.

The court said that the report was inconclusive as it was submitted without key findings on the role of one of the key suspects and it could not be relied on to make a finding that the claimants were culpable.

“The court has therefore found that the report by itself did not specifically implicate and establish the claimants’ culpability. It paints an extremely sad state of things under which serious offences with great losses appeared to have been committed but the claimants are not implicated individually,” said Justice Ongaya.

The report, he said, also identified the specific suspects who appeared to have been seniors of the claimants and law enforcement agencies seem to have been involved.

He added that the procedure adopted by KPC to dismiss the employees was unfair and that the disciplinary process gave the impression that it adhered to the Employment Act.

Justice Ongaya ruled that it was a basic procedural requirement for KPC to afford the claimants due process by serving them the investigation report, relevant information and the full particulars of the allegations before the disciplinary hearing was held but having failed to do so, it breached their right to fair labour practices.

The claimants argued that they each received a letter of suspension from duty, with managers saying they had received intelligence reports that they were among employees suspected of involvement in a product theft syndicate.

They also argued that they were not given any opportunity to face their accusers and cross-examine them.

KPC had told the court that the claimants engaged in unethical and unconscionable practice that led to the termination of their contracts.

It denied that the claimants were entitled to reinstatement or compensation and wanted the case dismissed with costs.

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