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ELRCPartially AllowedCause 960 of 2012· [2012] KEELRC 191 (KLR)

KENYA SHOE AND LEATHER WORKERS UNION V HR STRATEGIC PARTNERS LTD [2012] KEELRC 191 (KLR)

Industrial Court of Kenya
6 December 2012
MOMaureen Onyango
1,593 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Two workers labelled casuals won unfair dismissal awards because long service converted them to term contracts and they were fired without a hearing.

What this practically means

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Executive summary

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The Kenya Shoe and Leather Workers Union claimed on behalf of two grievants, Stephen Mutiso Nzau and Dismas Makori Momanyi, summarily dismissed in January 2012 by HR Strategic Partners Ltd, seeking reinstatement or, alternatively, reclassification to redundancy with terminal benefits. The respondent admitted the engagements but pleaded that the grievants were casual or seasonal employees dismissed for gross misconduct, and called its Human Resources Manager, Samuel Ireri Kiura, as its sole witness. The claimant called no witnesses, relying on its pleadings and documents. Justice Maureen Onyango found on the pleadings, correspondence and the respondent's own evidence that the grievants were not casuals, their contracts having converted to term contracts under Section 37 of the Employment Act. The court further found no evidence of a hearing before dismissal, noting the respondent had not specifically denied non-compliance with Section 41, and held the dismissals unfair. It also drew on Section 16 of the Employment Act, presuming contractual particulars because the respondent withheld clocking records while demanding strict proof from the claimant. On remedies, the court declined reinstatement, refused severance for want of redundancy, substituted service pay at 15 days per year worked, awarded two weeks' notice pay (reducing the claimed two months), leave pay as uncontradicted, six and four months' compensation respectively, and certificates of service. Final awards were Kshs.212,022 for Mutiso and Kshs.86,664 for Makori, payable within 30 days failing which the claimant may execute. The claim partially succeeded.

Key legal issues

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01

Status of the grievants' employment

Holding

The grievants were not casuals; their contracts had converted to term contracts

Reasoning

The pleadings and correspondence showed the grievants had been in employment over a sustained period before October 2010 and were paid through the bank. Under Section 37 of the Employment Act, continuous employment for a month or intermittent employment aggregating three months converts casual engagement to a term contract, attracting notice, rest days and statutory benefits.

p. 2
02

Fairness of the summary dismissal

Holding

The dismissal was unfair for want of a hearing under Section 41

Reasoning

The respondent did not specifically deny non-compliance with Section 41 of the Employment Act. The dismissal letters dated 27th January 2012 speak for themselves and show no hearing was convened nor opportunity to defend given, rendering the dismissals substantively and procedurally unfair.

p. 4
03

Entitlement to terminal benefits

Holding

Two weeks' notice pay, 15 days' service pay per year worked, accrued leave as prayed, reduced compensation, and certificates of service awarded

Reasoning

The respondent did not deny the prayed items nor produce records; the court drew on wage figures in the respondent's own annexures. Severance was refused for want of redundancy; service pay was substituted as no NSSF or gratuity records were produced. Compensation was scaled to six and four months' gross pay based on length of service.

p. 4

Legal principles established

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  • A casual employee engaged continuously for one month or intermittently for an aggregate of three months converts to a term contract under Section 37 of the Employment Act
  • An employer who withholds employment records from the court bears the consequence; the court may presume contractual particulars under Section 16 of the Employment Act
  • Summary dismissal without a hearing violates Section 41 of the Employment Act and is unfair

Court orders

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  1. 1.Payment to Stephen Mutiso Nzau of Kshs.212,022 and a certificate of service
  2. 2.Payment to Dismas Makori Momanyi of Kshs.86,664 and a certificate of service
  3. 3.Payment to be made within 30 days failing which the Claimant may move the Court for execution of the decree

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 9
  • Employment ActSections 10 and 74
  • Employment ActSection 16
  • Employment ActSection 35(1)(b) and Section 36
  • Employment ActSection 37
  • Employment ActSection 41
  • Employment ActSection 51
Jurisdiction invoked
Original jurisdiction of the Industrial Court under the memorandum of claim filed therein (Employment and Labour Relations Court jurisdiction over employment disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA SHOE AND LEATHER WORKERS UNION V HR STRATEGIC PARTNERS LTD [2012] KEELRC 191 (KLR)", Case Analysis (2012). Cause 960 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/191/eng@2012-12-06

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