KENYA UNION OF COMMERCIAL,FOOD & ALLIED WORKERS v HEBATULLA BROTHERS LTD [2002] KEELRC 29 (KLR)
The bottom line
#A Kenyan court ruled that 14 years of continuous daily work made an employee permanent, not casual, awarding him full terminal dues.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievant was a casual employee
No; having worked continuously for 14 years as a machine attendant, he was a permanent employee and the concept of casual employment did not apply to him
The statutory definition of a casual employee under Section 2 of the Employment Act requires payment at the end of each day and engagement for no longer than 24 hours at a time. Continuous employment postulates an unbroken employer-employee relationship with stability, frequency and regularity. Fourteen years of continuous service as a machine attendant, a position of a permanent nature, meant the grievant was in permanent employment, and no valid evidence sustained the claim that he remained casual.
Whether the grievant was constructively dismissed and entitled to the reliefs claimed
Yes; the Company's refusal to recognise his 14 years' past service when offering permanent terms led him to terminate his services, amounting to constructive dismissal entitling him to terminal dues and maximum compensation
The Company offered permanent employment effective 12 October 1998 without taking into account the grievant's 14 years of service and refused his representation on the point. This conduct, described as an abuse of the process of the law, drove the grievant to terminate his services and constituted constructive dismissal. He was therefore entitled to dues accruing to a permanent employee, and the Court considered this a fit case for maximum compensation of 12 months under Section 15(1)(ii) of the Trade Disputes Act.
Legal principles established
#- An employee paid daily but retained continuously for a long period is not a casual employee; casual status requires payment at the end of each day and engagement for no longer than 24 hours at a time
- Keeping an employee on casual terms for 14 years converts the employment into permanent employment and retaining such a worker without recognising past service may amount to constructive dismissal
Court orders
#- 1.The demand for 12 days' pay (Kshs. 2,052) is disallowed as the grievant was paid those wages
- 2.The demands under Clauses 4, 7(ii) and 9(f)(iv) of the collective agreement, pursuant to the proviso under Clause 18, are allowed
- 3.Maximum compensation for loss of employment awarded under Section 15(1)(ii) of the Trade Disputes Act
- 4.The grievant is awarded dues under heads (i), (iii), (iv) and (v) amounting in total to Kshs. 137,997 only
- Jurisdiction invoked
- Section 8 of the Trade Disputes Act, Cap. 234 (reference of the dispute by the Minister for Labour)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Richard Clifford Awino v United Millers Limited [2022] KEELRC 1038 (KLR)[2022] KEELRC 1038 (KLR)20 Jan 2022
- Nathan Chesang Moson v Grand Creek Llc & another [2020] KECA 204 (KLR)[2020] KECA 204 (KLR)6 Nov 2020applied
- Wayua Mueke & another v Sabethi Kanungui Mulwa & 3 others; Vito Auto Spares Limited (Interested Party) [2020] KEELC 3656 (KLR)[2020] KEELC 3656 (KLR)31 Jan 2020applied
Cite this brief
#Cite this brief
Caselaw, "KENYA UNION OF COMMERCIAL,FOOD & ALLIED WORKERS v HEBATULLA BROTHERS LTD [2002] KEELRC 29 (KLR)", Case Analysis (2002). Cause No. 90 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/29/eng@2002-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.