NGAO ELIJAH MVOYI v ATHI RIVER MINING LIMITED [2013] KEELRC 256 (KLR)
The bottom line
#A Kenyan court ruled that a worker treated as 'casual' for over seven years was legally a permanent employee, awarding him Kshs 200,200 for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimant - casual or term contract employee
By operation of section 37(1)(a) and (b) of the Employment Act, the Claimant was a term contract employee with monthly wages, not a casual employee, having worked over 7 years
The Daily Casual Attendance/Payment Voucher showed a daily rate of Kshs 650/-, but the recommendation letter/certificate of service showed continuous employment from 15 May 2004 to 12 August 2011, a period of over 7 years. Section 37 of the Employment Act, 2007 converts casual employment into a term contract where a casual employee works for a period amounting to not less than one month or performs work that cannot be completed within three months. The Claimant therefore fell to be treated as a term contract employee under section 35.
Whether the termination was unfair and unlawful
The termination was unfair and unlawful, both procedurally and substantively, as the Respondent adduced no evidence
The Claimant's sworn testimony established that his services were terminated on 12 August 2011 without notice or hearing. The burden then shifted to the employer to prove compliance with sections 41, 43 and 45 of the Employment Act. The Respondent, though served with summons, Memorandum of Claim and hearing notice, filed no Response and did not appear at the hearing. On the unchallenged testimony, the termination breached both procedural and substantive requirements.
Appropriate remedies
One month salary in lieu of notice (Kshs 14,300/-), accrued leave for 7 years (Kshs 100,100/-) and 6 months' gross pay as compensation (Kshs 85,800/-) awarded; severance pay, service pay and house allowance declined
Sections 35(1)(c) and 49(1)(a) of the Employment Act justified one month's salary in lieu of notice. The monthly equivalent was assessed at the daily rate multiplied by 22. Accrued leave was awarded under section 28 as the Claimant's unchallenged evidence was that he never went on leave and the employer bore the obligation to keep leave records. Compensation equivalent to 6 months' gross pay was awarded under section 49(1)(c), taking into account the statutory factors and the refusal of severance/service pay. Severance pay was refused as there was no redundancy; house allowance was refused as daily rates already include it.
Unfair labour practices by the Respondent
The Respondent engaged in unfair labour practices by failing to issue a written contract and by keeping the Claimant as a casual employee beyond the statutorily allowed period; the Commissioner for Labour was directed to inspect the Respondent's factory records
The Claimant served for over 7 years without a written contract, contrary to section 9 of the Employment Act which obligates employers to draw up written contracts for engagements exceeding three months. Section 37 prohibits keeping casual employees beyond the statutory period. The Court considered it just to direct the Commissioner for Labour, through the County Labour Officer, Mombasa, to inspect the Respondent's Kaloleni factory records and conditions of employment and file a report with the Court within 30 days.
Legal principles established
#- A casual employee who works for a period amounting to not less than one month, or performs work not completable within three months, is by operation of law converted to a term contract under section 37 of the Employment Act, 2007
- Once an employee establishes termination, the burden shifts to the employer to prove procedural compliance under section 41, valid reasons under section 43, and fairness under section 45 of the Employment Act
- For employees paid daily, the equivalent monthly salary is computed by multiplying the daily rate by 22 days, not 30
Court orders
#- 1.Declaration that the Claimant was a term contract and not a casual employee
- 2.Declaration that the termination of the Claimant was unfair and unlawful
- 3.Respondent to pay the Claimant one month salary in lieu of notice of Kshs 14,300/-
- 4.Respondent to pay the Claimant accrued leave for 7 years of Kshs 100,100/-
- 5.Respondent to pay the Claimant 6 months' compensation for unfair termination of Kshs 85,800/- (total Kshs 200,200/-)
- 6.Deputy Registrar to notify/furnish the Commissioner for Labour/County Labour Officer, Mombasa to carry out inspection/examination of the Respondent's employment records at the Kaloleni factory and file a report with the Court within 30 days
- 7.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007; Labour Institutions Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NGAO ELIJAH MVOYI v ATHI RIVER MINING LIMITED [2013] KEELRC 256 (KLR)", Case Analysis (2013). Memorandum of Claim filed 7 March 2013 (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/256/eng@2013-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.