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ELRCPartially Allowed· [2013] KEELRC 260 (KLR)

STEPHEN WAWERU MAINA V NICEY NICEY MILLERS LTD [2013] KEELRC 260 (KLR)

Employment and Labour Relations Court
4 June 2013
ANAbuodha J. N.
1,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a 'casual' worker who lasts over a month automatically becomes a monthly employee entitled to notice before termination.

What this practically means

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Executive summary

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The claimant sued for terminal benefits of Kshs.25,468, damages for wrongful dismissal, costs and interest, alleging he was employed as a casual labourer and summarily terminated after injuring his finger at work in June 2010, with unpaid June 2010 salary, one month's notice pay, pro-rated leave and leave travelling allowance claimed. He testified that after his injury he returned to work but was refused light duties and referred to the insurance for compensation; the respondent's proprietor (RW1) testified that the claimant was given insurance claim forms and never returned, and that recruitment and termination were his preserve. The court identified the critical question as whether the claimant was terminated or absconded, and found neither party helpful on that point: the claimant's demand letter made no mention of wrongful termination, and the respondent produced no evidence of efforts to trace the claimant. Applying Section 2 and Section 37(1) of the Employment Act, the court held that although engaged and paid weekly as a casual, the claimant, having worked approximately six months, was by operation of law deemed a month-to-month employee, terminable only on the requisite written notice under Section 35(1)(c). Accordingly, the respondent ought to have given the claimant one month's notice should he default to return to work. The court awarded one month's salary in lieu of notice, but disallowed the claims for leave and leave travelling allowance as the claimant had not served a year. The claim therefore succeeded only in part. The judgment, dated and delivered at Nyeri on 4th June 2013 by Abuodha J. N., makes no express order on costs or interest.

Key legal issues

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01

Whether the claimant, though engaged and paid weekly as a casual, had converted to a monthly employee by operation of law

Holding

The court found the claimant was not a casual employee at the time of cessation of employment, having worked approximately 6 months; he was deemed a month-to-month employee under Sections 2 and 37(1) of the Employment Act.

Reasoning

Section 2 of the Employment Act defines a casual employee as one paid at the end of each day and not engaged for longer than twenty-four hours at a time. The claimant was paid weekly and had worked approximately six months. Section 37(1) deems a casual who works the equivalent of not less than one month to be on monthly terms. The court held he may have been casual at the onset but not subsequently, and the respondent was bound to give notice.

p. 2
02

Whether the claimant was summarily terminated or absconded

Holding

The court found the evidence on both sides inconclusive: neither party assisted the court on this critical point. It nonetheless held the respondent ought to have given the claimant one month's notice should he default to return to work, and awarded one month's salary in lieu of notice.

Reasoning

The claimant said he returned but was referred to the insurance for compensation; the respondent said he was given insurance claim forms and never returned. The demand letter made no mention of wrongful termination, and the respondent produced nothing to show it looked for the claimant to justify the absconding claim. The court held termination for absconding required the requisite notice given the claimant's deemed monthly status.

p. 2

Legal principles established

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  • A casual employee who works for a period equivalent to not less than one month is by operation of law deemed to be employed on monthly terms under Section 37(1) of the Employment Act, and termination of such an employee's services requires the requisite notice
  • A contract paying wages periodically at intervals of or exceeding one month is terminable by either party at the end of 28 days next following the giving of notice in writing
  • Leave entitlement accrues only after one year of continuous service

Court orders

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  1. 1.The respondent to pay the claimant one month's salary in lieu of notice
  2. 2.The claims for leave and leave travelling allowance disallowed
  3. 3.It is so ordered (final disposition)

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 35(1)(c)
  • Employment ActSection 37(1)
Jurisdiction invoked
Original employment and labour relations jurisdiction (claim for terminal benefits and wrongful dismissal); specific empowering provision not stated in the judgment

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, "STEPHEN WAWERU MAINA V NICEY NICEY MILLERS LTD [2013] KEELRC 260 (KLR)", Case Analysis (2013). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/260/eng@2013-06-04

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