Kenya: Driver in Fuel Siphoning Claim Awarded Sh350,000 for Unfair Dismissal

On July 21, 2017, a truck driver Daniel Musya was on his way to deliver a 40-feet container at the Kenya Ports Authority when he was fired.

He had delivered the container at 4am but was caught up in a traffic snarl-up within the facility as he tried to leave.

He was then instructed by KPA's security personnel to exit the port through gate 18, as there was traffic jam at the other gates.

As Mr Musya was heading back to Dodwell and Company East Africa Ltd yard, he was stopped by the firm's security deputy manager, who wanted to know where he was coming from.

According to the company, the driver had intentionally diverted the tractor from the designed route to a different direction to siphon fuel.

He was then later on that day summoned and sacked.

In the dismissal letter, the company explained that it resolved to sack him for involving himself in gross misconduct.

KPA claimed that its staff intercepted Mr Musya on his way from the port.

According to the firm, Mr Musya siphoned fuel from his assigned tractor, which was an act of dishonesty and therefore it was recommended that his services be terminated.

"Mr Musya could not explain why he had diverted the tractor from the designated route. His response was also found to be unsatisfactory and he was therefore summarily dismissed, on account of gross misconduct," the firm's Deputy Manager, Lawrence Mwamtsi said.

Mr Musya then sued the company for unfair termination of his employment and asked for compensation.

He accused the company of failing to give him a valid reason for the termination as well as violation of due procedure.

He filed the case before Industrial Court in Mombasa.

The firm, however, told the court that Mr Musya's dismissal was substantively and procedurally fair as he was allowed to respond to the charge of siphoning fuel but his explanation was found to be unsatisfactory.

The company did not buy Mr Musya's explanation that he had gone off the normal route to deliver medicine to his mother.

He denied siphoning fuel and maintained that the jam caused him to change the route.

"In light of the foregoing and the evidence in our possession, it's clear that you have committed gross misconduct which warrants severe disciplinary action.

Therefore, management is left with no option but to summarily dismiss you from employment," the firm said in a dismissal letter.

But Justice Linnet Ndolo, who handled the case, noted that there was no evidence that the specific charge, upon which Mr Musya was dismissed, was put to him at the shop floor for him to respond to.

The judge stated that for an employee to effectively respond to allegations made against them by the employer, they must be given explicit notice of the charges and allowed adequate time to prepare their defence.

But in this case, the complainant was sacked on the same day he was allegedly found siphoning fuel from the truck.

"This kind of guillotine procedure has no place in our employment law," said the judge.

In addition, the court noted a contradiction on the firm's side as to the mode of Musya's exit from employment.

On one hand, the firm produced a dismissal letter citing gross misconduct by the complainant, and at the same time, it filed a staff pension scheme withdrawal calculation sheet showing the reason for the exit as a voluntary resignation.

"This stark contradiction, which the firm did not bother to explain, but its line of defence into serious question and the court did not know what to believe. What is clear is that the firm so violated the procedural fairness edicts set out in the law, that no reason for dismissal was established," said the judge.

Mr Musya was been awarded a compensation of more than Sh350, 000 plus interest.

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