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ELRCPartially AllowedCause 1053 of 2012· [2013] KEELRC 232 (KLR)

ESTHER MUNGWELE MWENDWA V INSIGHT MANAGEMENT CONSULTANTS LTD [2013] KEELRC 232 (KLR)

Industrial Court of Kenya at Nairobi
6 June 2013
LNLINNET NDOLO
976 words in judgment
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The bottom line

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A Kenyan court ruled daily-paid workers are not automatically casual employees, and employers must prove valid reasons and fair procedure before terminating.

What this practically means

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Executive summary

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The Claimant, employed by Hi-plast Limited in August 2005 as a Machine Attendant at a monthly salary of Kshs. 9,450 paid daily at Kshs. 315 per day, was transferred with other employees to the Respondent under an agreement retaining their terms and conditions. In April 2011 the Respondent notified her that her name was not in its data base and that she should stop reporting to work; she was never recalled. She sued for unfair termination seeking notice pay, severance, leave pay, overtime and twelve months' compensation. The Respondent, despite filing a Memorandum of Response denying the claim and asserting she was a casual employee engaged from time to time, did not appear at the hearing on 23rd April 2013, and the matter proceeded ex parte. The Court found an employment relationship existed, corroborated by the Respondent's admission and an uncontroverted NSSF statement showing employment from 1st August 2005. Though paid daily, the Claimant was held not to be a casual employee; the Court invoked Section 37 of the Employment Act and converted the employment to a term contract. Under Section 45(2), the Respondent proved neither a valid reason nor fair procedure for the termination, which was therefore unfair. Three months' salary was awarded as compensation, plus one month's notice pay and annual leave of 21 days per year over about five years, totalling Kshs. 75,285. The severance claim failed for lack of evidence of redundancy, and the overtime claim was dismissed as unproved. The Respondent was ordered to pay costs. Dated and delivered in open court at Nairobi on 6th June 2013 by Linnet Ndolo, Judge.

Key legal issues

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01

Existence of an employment relationship

Holding

An employment relationship existed between the Claimant and the Respondent from 1st August 2005

Reasoning

The Respondent admitted employing the Claimant, albeit allegedly on casual basis. The Claimant produced a Provisional Member Statement of Account from the National Social Security Fund showing her date of employment as 1st August 2005 with the Respondent as her employer. The Respondent did not controvert this evidence, so the Court concluded the relationship existed.

p. 2
02

Casual employment versus term contract

Holding

Although paid daily, the Claimant was not a casual employee; her employment was converted to a term contract

Reasoning

A casual employee is one paid at the end of each day and not engaged for longer than twenty-four hours at a time. The Respondent pleaded casual engagement but produced no particulars of dates. The job of Machine Attendant was not consistent with casual employment, and NSSF contributions suggested longevity. The Court invoked Section 37 to convert the employment to a term contract.

p. 2
03

Unfair termination

Holding

The termination was unfair; the Respondent gave no valid reason and adopted no procedure

Reasoning

Section 45(2) places the burden on the employer to prove a valid and fair reason related to conduct, capacity or compatibility or based on operational requirements, plus fair procedure. Apart from averring casual employment, the Respondent gave no reason for termination and there was no procedure. The ex parte evidence of being told to stop working went unrebutted.

p. 3

Legal principles established

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  • Where an employee engaged and paid as a casual has worked beyond the statutory period, the Court may convert the employment to a term contract under Section 37 of the Employment Act
  • An employer who fails to prove a valid and fair reason and fair procedure effects an unfair termination within the meaning of Section 45 of the Employment Act

Court orders

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  1. 1.Three months' salary in compensation for unfair termination of Kshs. 28,350
  2. 2.One month's salary in lieu of notice of Kshs. 9,450
  3. 3.Annual leave pay of Kshs. 37,485
  4. 4.Total award of Kshs. 75,285 against the Respondent
  5. 5.Respondent to pay the costs of the case

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 37
  • Employment ActSection 45(2)
  • Labour Relations ActSection 2
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination of employment under the Employment Act, 2007

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, "ESTHER MUNGWELE MWENDWA V INSIGHT MANAGEMENT CONSULTANTS LTD [2013] KEELRC 232 (KLR)", Case Analysis (2013). Cause 1053 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/232/eng@2013-06-06

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