Florence Syokaumuli & another v Vegpro (K) Limited [2013] KEELRC 169 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were employees of the respondent
The claimants were employees of the respondent; the respondent's own witness confirmed their employment.
The 1st claimant testified she was employed in March 1994 and the 2nd in August 1996. The respondent did not dispute this, and its witness DW1 confirmed the claimants worked with the respondent as a cook and in the park house respectively. The court thus found employment established, answering the first issue in the affirmative.
Whether the claimants were in continuous employment rather than casual employment
The claimants were term contract employees, not casual employees, having worked continuously for periods exceeding one month.
The claimants worked six days a week on night shifts, signing attendance registers, which was undisputed. The respondent produced no employment records to rebut this evidence despite its statutory duty under sections 10 and 74 of the Employment Act to keep records. Applying section 37(1), continuous service of a month or more converts a casual contract to monthly terms, and the court followed prior authorities to that effect.
Whether the termination of the claimants' employment was wrongful, unfair and unlawful
The termination was wrongful, unfair and unlawful; the respondent's assertions of casual employment and abscondment were unsubstantiated.
The 1st claimant was dismissed after requesting transfer back to the night shift and the 2nd after requesting transfer to the day shift on health grounds; neither was paid. The respondent claimed they were casuals who absconded, but this was not supported by evidence. The respondent failed to discharge its burden of justifying the terminations under section 47(5) of the Employment Act, while the claimants proved their complaints.
Whether the claimants were entitled to the relief sought
The claimants were entitled to relief, with the 1st claimant's period of service reduced to eleven years to account for three years out of employment following a motor vehicle accident.
Wrongful, unfair and unlawful termination entitles the employee to the relief sought. In cross-examination the 1st claimant admitted she had been out of employment for three years from December 2000 due to a motor vehicle accident, so that period was discounted and her service taken as eleven years. Awards were computed accordingly for notice, untaken leave, service gratuity and eight months' compensation for each claimant.
Legal principles established
#- An employer has a statutory duty to keep and maintain employment records under sections 10 and 74 of the Employment Act, 2007; in the absence of contrary evidence, the claimant's evidence on continuous employment stands.
- A casual employee who works for a period equivalent to not less than one month is deemed by section 37 of the Employment Act, 2007 to be employed on monthly terms.
- Under section 47(5) of the Employment Act, 2007, the employee bears the burden of proving unfair termination or wrongful dismissal, while the employer bears the burden of justifying the grounds for termination.
Court orders
#- 1.Judgment for the 1st claimant, Florence Syokau Muli, in the sum of Ksh.238,847.50 comprising one month's salary in lieu of notice (Ksh.9,405.00), payment in lieu of untaken leave for 11 years (Ksh.103,455.00), service gratuity at 18 days per completed year of service (Ksh.50,747.50) and 8 months' compensation for unlawful termination (Ksh.75,240.00)
- 2.Judgment for the 2nd claimant, Elizabeth Ndunge Muli, in the sum of Ksh.253,000.00 comprising one month's salary in lieu of notice (Ksh.9,000.00), payment in lieu of untaken leave for 12 years (Ksh.108,000.00), service gratuity for 12 years (Ksh.64,000.00) and 8 months' compensation for unlawful termination (Ksh.72,000.00)
- 3.The costs of the cause to be borne by the respondent
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Florence Syokaumuli & another v Vegpro (K) Limited [2013] KEELRC 169 (KLR)", Case Analysis (2013). Cause No. 1043 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/169/eng@2013-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.