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ELRCPartially AllowedCause No 78 of 2012· [2013] KEELRC 92 (KLR)

Kenya Union of Employees of Voluntary and Charitable Organization v Board of Governors – Tala High School [2013] KEELRC 92 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
25 October 2013
1,519 words in judgment
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The bottom line

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A Kenyan court ruled that a gardener working six years without a written contract was legally a permanent employee, not a casual, entitling him to reinstatement and back pay.

What this practically means

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Executive summary

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This Industrial Court judgment resolves a trade union claim on behalf of a grievant, Nicholas M. Muoka, a gardener employed by the Respondent school from 3rd May 2006 until termination on 22nd March 2011. A prior consent award of the court had ordered the Respondent to reinstate the grievant, but he was never reinstated despite repeatedly reporting to work, the Respondent maintaining he was a casual employee who declined reinstatement on casual terms. The court framed the dispute around the grievant's employment status, statutory compliance, and the terminal dues owed. Applying Sections 7, 9, 10(7), 35, 37 and 74 of the Employment Act, 2007, the court held that the grievant's six years of continuous employment converted any casual engagement into permanent employment by operation of law, and that the failure to issue a written contract shifted the burden of proving the terms of employment onto the employer, who produced no records. On a balance of probabilities, the court found the grievant was a permanent employee earning Kshs.6,000/= monthly, denied leave, rest days and public holidays, and unpaid for 22 days worked in March 2011, with NSSF dues unpaid from May 2006 to December 2007. The court directed reinstatement on permanent terms with arrear salary of Kshs.60,000/= up to 30th October 2013, employment in conformity with the General Wage Order, and terminal benefits comprising leave pay of Kshs.23,200, Kshs.69,578/50 for work on 307 public and weekly rest days, and Kshs.8,000/= to NSSF, totalling Kshs.160,778/50 in terminal benefits. The claim for house allowance was not upheld on the basis that the daily rates paid were consolidated and above the legal minimum. The Respondent was ordered to pay the costs of the suit.

Key legal issues

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01

Status of the Grievant's employment

Holding

The Grievant was a permanent employee earning Kshs.6,000/= monthly, not a casual

Reasoning

The Grievant worked continuously for six years as a gardener. No written contract was produced, so under Section 10(7) the burden fell on the employer to disprove the alleged terms. The Respondent offered no evidence. Under Section 37(1) of the Employment Act, employment exceeding the casual thresholds is deemed monthly and converts to permanent employment, and Section 35(1)(c) applies.

p. 4
02

Failure to issue a written contract of service

Holding

The Respondent contravened Sections 7 and 9(1)(a) and (b) of the Employment Act by failing to provide a written contract

Reasoning

The Grievant's employment exceeded three months, so Section 9 required the contract to be in writing. The failure to reduce the contract to writing caused the dispute over its terms. The court drew an adverse inference from the absence of employment records required under Section 74(1).

p. 3
03

Entitlement to leave, rest days, holidays and unpaid salary

Holding

The Claimant proved non-payment for 22 days in March 2011, non-grant of leave, and work on public holidays and weekly rest days

Reasoning

Section 74(1) obliged the employer to keep records of weekly rest days and annual leave. The Respondent produced no such records and failed to discharge its onus to rebut the Claimant's case on a balance of probabilities.

p. 3
04

Non-remittance of NSSF dues

Holding

NSSF dues for May 2006 to December 2007 are due and owing to NSSF

Reasoning

The evidence showed the Respondent remitted NSSF dues only from 2008 to February 2012, leaving the period May 2006 to December 2007 unpaid. The court ordered remittance of Kshs.8,000/= for 20 months.

p. 3

Legal principles established

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  • Where an employer fails to produce a written contract of service, the burden of proving or disproving an alleged term of employment lies on the employer
  • A casual employee engaged for a period equivalent to not less than one month, or on work not completable within three months, is by operation of law deemed to be employed on monthly terms and the employment is converted to permanent employment

Court orders

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  1. 1.The Respondent to reinstate the Grievant to employment on permanent basis, earning the monthly salary of Kshs.6,000/= he earned at the time of termination
  2. 2.The Respondent to pay all arrear salary to-date in the sum of Kshs.60,000/= up to the 30th October, 2013
  3. 3.The Respondent to continue to employ the Grievant in conformity with the minimum wage prescribed by the General Wage Order
  4. 4.The Respondent to pay Kshs.23,200 in lieu of 116 annual and prorata leave days
  5. 5.The Respondent to pay Kshs.69,578/50 for work done during 307 public and weekly rest days
  6. 6.The Respondent to remit Kshs.8,000/= at the rate of Kshs.400/= per month for 20 months to NSSF
  7. 7.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Section 7
  • Employment Act, 2007Section 9(1)(a) and (b), 9(2)
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Section 37(1)
  • Employment Act, 2007Section 74(1)
  • Employment Act, 2007Sections 27 and 28
  • General Wage OrderMinimum wage provisions
Jurisdiction invoked
Employment and labour relations jurisdiction; enforcement of a consent award dated 28th January 2012 delivered by this court

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 Union of Employees of Voluntary and Charitable Organization v Board of Governors – Tala High School [2013] KEELRC 92 (KLR)", Case Analysis (2013). Cause No 78 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/92/eng@2013-10-25

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