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ELRCPartially AllowedCause No. 90 of 2001· [2002] KEELRC 29 (KLR)

KENYA UNION OF COMMERCIAL,FOOD & ALLIED WORKERS v HEBATULLA BROTHERS LTD [2002] KEELRC 29 (KLR)

Industrial Court of Kenya
4 July 2002
2,365 words in judgment
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The bottom line

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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

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Executive summary

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The Minister for Labour referred a trade dispute to the Industrial Court under Section 8 of the Trade Disputes Act, Cap. 234, concerning the termination of James Nyaa, a machine attendant employed by Hebatulla Brothers Ltd since 21st May 1984 on daily wages. In October 1998 the Company offered the grievant permanent employment without recognising his 14 years of past service; he declined to sign and was, per the Union, verbally and constructively dismissed. The Union claimed reinstatement or, alternatively, terminal dues including pay in lieu of notice, days worked, accumulated annual leave, severance pay and maximum compensation of 12 months. The Company maintained that the grievant was a casual employee who rejected a legitimate offer of permanent terms and walked away without provocation, and was therefore entitled to nothing. The Court, per Chemmuttut, J, with both members concurring, held that on the statutory definition a casual employee must be paid at the end of each day and engaged for no longer than 24 hours at a time; 14 years of continuous service placed the grievant in permanent employment. Refusing to count his past service when offering permanent terms was an abuse of the process of the law and led to his constructive dismissal. The claim for 12 days' pay was disallowed as the evidence showed those wages had been paid, but the remaining heads were allowed, with maximum compensation of 12 months under Section 15(1)(ii) of the Act, totalling Kshs. 137,997. Delivered at Nairobi on 4th July 2002.

Key legal issues

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01

Whether the grievant was a casual employee

Holding

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

Reasoning

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.

p. 3
02

Whether the grievant was constructively dismissed and entitled to the reliefs claimed

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The demand for 12 days' pay (Kshs. 2,052) is disallowed as the grievant was paid those wages
  2. 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. 3.Maximum compensation for loss of employment awarded under Section 15(1)(ii) of the Trade Disputes Act
  4. 4.The grievant is awarded dues under heads (i), (iii), (iv) and (v) amounting in total to Kshs. 137,997 only

Authorities

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Legislation

  • Trade Disputes Act, Cap. 234Section 8
  • Trade Disputes Act, Cap. 234Section 14(9)(e) and (f)
  • Trade Disputes Act, Cap. 234Section 4
  • Trade Disputes Act, Cap. 234Section 15(1)(ii)
  • Employment Act, Cap. 226Section 2 (definition of casual employee)
  • Employment Act, Cap. 226Section 5(2)(a), (b), (c) and (d)

Cases cited (3)

  • Bakery, Confectionery, Manufacturing & Allied Workers Union v. Janendra Raichand Shah t/a Dais Bakery
    Cause No.116 of 1999
  • Pennsylvania Relations Board v. Yellow Cab & Bus Co.
    10 Labour Cases, 63085
  • Kenya Building, Construction, Timber, Furniture & Allied Industries Employees’ Union v. Firoze Construction Ltd.
    Cause No.74 of 1995
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference of the dispute by the Minister for Labour)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.