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ELRCPartially AllowedCause 671 of 2012· [2012] KEELRC 143 (KLR)

WILFRED BUKACHI OPWAKA V READY CONSULTANCY COMPANY LIMITED [2012] KEELRC 143 (KLR)

Industrial Court of Kenya
29 October 2012
MOMaureen Onyango
1,897 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that 'casual' workers employed over a month become regular employees, and firing without reasons or a hearing is unfair.

What this practically means

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Executive summary

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The claimant, employed by the respondent from January 2009 as a machine operator in the waste paper department at a daily rate of Shs.365, was summarily dismissed on 6th January 2012 on grounds of underperformance (packing underweight bales). The dismissal was effected by an employee of Mombasa Maize Millers, the client company to which the respondent supplied labour. The claimant sought a declaration that his dismissal was unlawful, terminal dues and damages totalling Shs.194,910, plus costs and interest. The court held that under Section 37 of the Employment Act, the claimant's continuous employment of over one month converted his casual engagement into a monthly contract, entitling him to notice and annual leave. The dismissal was found unfair and unjustified because the claimant was never informed of the reasons, was given no opportunity to be heard, and was dismissed verbally and instantly contrary to Sections 41, 43, 44 and 45 of the Act. The court awarded one month's pay in lieu of notice (Shs.10,950), service pay at 15 days per completed year of service for 3 years (Shs.16,425) - departing from the claimant's reliance on a Rika award of 18 days per year - payment in lieu of 21 days' annual leave for each of 3 years (Shs.22,995), and the maximum compensation of 12 months' salary (Shs.131,400), citing the unlawful casualisation of the claimant for 3 years and the respondent's failure to contest the compensation. Total judgment of Shs.181,770 was awarded, payable within 30 days, with costs to the claimant.

Key legal issues

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01

Conversion of casual employment to monthly contract

Holding

The claimant, having worked continuously for over one month, was converted to a monthly contract and entitled to annual leave and termination notice under Section 37 of the Employment Act

Reasoning

Section 37 of the Employment Act deems a casual employee who works continuously for one month to be on monthly contract terms. The claimant worked from January 2009 to January 2012, well beyond one month. He was therefore no longer a casual employee but employed on a monthly contract, entitling him to annual leave and termination notice under Section 37.

p. 2
02

Fairness of the summary dismissal

Holding

The dismissal was unfair and unjustified because the claimant was not informed of the reasons nor given a hearing

Reasoning

Sections 41, 43, 44 and 45 of the Employment Act govern termination on disciplinary grounds. The respondent admitted through its witnesses and pleadings that the claimant was never informed of the reasons for termination and was given no opportunity to defend himself. The dismissal was verbal, instant, and effected by an employee of the client company rather than the employer.

p. 3
03

Entitlement to notice pay, service pay, leave pay and maximum compensation

Holding

The claimant was awarded one month's pay in lieu of notice, service pay at 15 days per year, 21 days' leave per year for 3 years, and the maximum 12 months' compensation

Reasoning

Section 49 entitles an unjustifiably terminated employee to wages equivalent to notice. Section 35(5) read with 35(6) entitles a non-NSSF member to service pay. Leave was admitted never to have been granted. The maximum 12 months' compensation under Section 49 was warranted given three years of casualisation against the law, dismissal by a non-employer, and the respondent's failure to contest the amount.

p. 3

Legal principles established

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  • A casual employee who works continuously for one month is deemed converted to a monthly contract under Section 37 of the Employment Act, entitling them to annual leave and termination notice
  • A summary dismissal without informing the employee of the reasons or giving an opportunity to be heard is unfair and unjustified
  • Where no industry-specific provision exists, the practice has been to award service pay at the redundancy rate of 15 days per completed year of service

Court orders

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  1. 1.Judgment for the claimant against the respondent in the total sum of Shs.181,770/= comprising Shs.10,950 notice pay, Shs.16,425 service pay, Shs.22,995 payment in lieu of leave and Shs.131,400 compensation for unfair dismissal
  2. 2.Payment to be made within 30 days from the date of judgment
  3. 3.Costs of the suit against the respondent, to be agreed by the parties, failing which to be taxed by the Registrar

Authorities

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Legislation

  • Employment ActSection 37
  • Employment ActSections 41, 43, 44 and 45
  • Employment ActSection 49
  • Employment ActSections 35(5) and 35(6)
  • Employment ActSection 37(5)
  • Labour Institutions Act (formerly the Regulation of Wages and Conditions of Employment Act, now repealed)General Orders - General Order (Protective Security Industry)

Cases cited (1)

  • Ruth Kemunto Omwoyo v East African Growers
    Cause No.746 of 2011
Jurisdiction invoked
Employment Act; Industrial Court first-instance jurisdiction over employment disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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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, "WILFRED BUKACHI OPWAKA V READY CONSULTANCY COMPANY LIMITED [2012] KEELRC 143 (KLR)", Case Analysis (2012). Cause 671 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/143/eng@2012-10-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.