Abandoning an employer's vehicle may seem like an innocent act of protest or frustration, but a recent ruling by the Employment and Labour Relations Court shows it can expose an employee to massive financial liability.
Under section 19 of the Employment Act, as an employee, you are accountable for the losses arising from neglecting or failing to hand over whatever tool your employer gave you, be it a car or any other.
As an employee, you are the custodial owner of assigned vehicles, and the law holds you accountable for loss or any damage accrued during cases of abandonment.
With this in mind, abandonment can lead to your dismissal by your employer, as revealed in section 44. The law terms this a fundamental breach of contract and even a potential criminal offence against the property of the employer.
Similarly, protesting against underpayment or unfair treatment by your employer can also be contested in a court of law, and your employer can be forced to pay you millions if they fail to follow guidelines within the law.
Before official dismissal, the employee is required to issue a "notice to show cause" and allow the employee a fair hearing before contract termination.
These dynamics were revealed in a recent court ruling where a truck driver sued his employer for unfair dismissal, underpayment, and failure to pay full benefits.
The company, however, argued that it fired him lawfully because of misconduct and negligence, and also accused him of causing major losses to a truck and failing to return company items. The court ruled in favour of the driver.
The court found that the driver's dismissal was unfair, noting that although the driver abandoned the vehicle in protest, the company did not give him a fair hearing before dismissal.
The court also found that even though the driver's contract said he was "a driver", he was driving a truck that qualified him as a commercial heavy driver. Due to this reason, the court found that he was being underpaid.
It was thus ruled that the company should compensate the driver over Ksh 39,000 monthly for one year, although the driver had worked for the company for three years.
The court upheld a previous court's findings, ruling that the compensation award was properly exercised under Section 49 of the Act and based on the respondent's gross wage of Ksh 39,450.86. It also affirmed entitlement to notice pay at the same gross salary due to a lack of due process in the termination.
Additionally, the court upheld the award of service pay, citing failure to prove statutory contributions for the three years worked.
Accordingly, the judgment of the trial court awarded the driver Ksh 394,508.60 as compensation, Ksh 39,405.86 as notice pay, Ksh 59,221.15 as service pay, Ksh 233,518.32 for underpayments, and Ksh 37,653.85 as accrued leave pay, bringing the total award to Ksh 764,307.78.
A twist came in a counter lawsuit after the employer also went to court to claim damages for the employee's decision to abandon the lorry, which the employer argued led to considerable losses.
The court also upheld the employer's claim, finding that the driver was responsible for losses arising from negligence that led to damage to the company truck, as well as for failing to return company tools and accessories.
As a result, the employer was awarded Ksh 2,563,285 for vehicle-related losses and Ksh 113,000 for unreturned items, bringing the total amount owed by the driver to approximately Ksh 2.67 million.
