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ELRCPartially AllowedCause 909 of 2011· [2013] KEELRC 336 (KLR)

WILLIAM OPETU V MUKESH PATEL [2013] KEELRC 336 (KLR)

Industrial Court of Kenya
14 May 2013
1,502 words in judgment
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The bottom line

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A Kenyan court ruled that 'casual' workers employed continuously for over a month automatically become term-contract employees entitled to protection from unfair termination.

What this practically means

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Executive summary

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The Claimant sued the Respondent for unfair termination of employment and failure to pay terminal dues, alleging he was employed as a day labourer from 31st August 2010 to 1st March 2011 at a daily wage of Kshs. 250, working full days from 6.00 am to 6.30 pm seven days a week, and terminated without notice after asking for a letter of appointment. The Respondent maintained the Claimant was a casual employee hired daily for no more than half a day, terminable at the close of each day without notice. The court found the Claimant's evidence uncontroverted since the Respondent called no witness and produced no employment records, and held that continuous employment for more than a month converted the casual engagement into a term contract by operation of law under Section 37 of the Employment Act. The Respondent's argument that Section 45(3) barred the claim for want of thirteen months' service failed because that provision had been declared unconstitutional in Samuel G. Momanyi as discriminatory. The Respondent having failed to prove any reason for termination as required by Section 43, the termination was found unfair. The court awarded three months' salary as compensation, one month's salary in lieu of notice, an underpayment differential treating the 15% house allowance as built into the statutory minimum wage, and prorata leave under Section 28(1)(b), totaling Kshs. 35,249. The Respondent was ordered to pay the costs of the case. The judgment was delivered in open court at Nairobi on 14th May 2013 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the Claimant's casual employment was converted to a term contract

Holding

The Claimant worked full days continuously for more than a month, so his employment was converted from casual to term contract by operation of law

Reasoning

The court found the Claimant's testimony that he worked from 6.00 am to 6.30 pm daily uncontroverted, since the Respondent called no witness and produced no records of hours worked or of the effective employment date as required by Section 10 of the Employment Act. The nature of the tasks also could not be accomplished in half a day. The court therefore adopted the Claimant's dates and found conversion under Section 37.

p. 2
02

Whether Section 45(3) of the Employment Act barred the Claimant's unfair termination claim

Holding

Section 45(3) had been declared unconstitutional and could not bar the claim

Reasoning

The Respondent argued the Claimant could not claim unfair termination as he had served less than thirteen months under Section 45(3). The court noted that in Samuel G. Momanyi v Attorney General & SDV Transami Kenya Ltd, the provision had been declared unconstitutional as discriminatory against employees with less than thirteen months' service, and thus could not be used to defeat the claim.

p. 2
03

Whether the termination was unfair

Holding

The termination was unfair within the meaning of Section 45 because the Respondent failed to prove any reason for termination

Reasoning

Under Section 43, the employer bears the burden of proving the reason for termination. The Claimant testified he was terminated after asking for a letter of appointment; the Respondent did not controvert this evidence or offer an alternative reason. The termination was therefore unfair, and compensation of three months' salary plus one month's notice pay was awarded.

p. 3
04

Entitlement to house allowance and prorata leave

Holding

The house allowance claim was subsumed in an underpayment award and prorata leave was awarded as a statutory right even though not pleaded

Reasoning

The court used the Regulation of Wages (General) (Amendment) Order, 2010 minimum salary of Kshs. 6,743, loaded 15% housing allowance to reach Kshs. 7,754 as gross monthly salary, treating the Kshs. 254 difference as underpayment. Prorata leave, though not pleaded, was awarded as a right under Section 28(1)(b) of the Employment Act.

p. 3

Legal principles established

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  • An employee employed on casual terms who works continuously for one month is deemed converted to monthly contract terms by operation of law under Section 37 of the Employment Act
  • Section 45(3) of the Employment Act restricting unfair termination claims to employees with thirteen months' continuous service has been declared unconstitutional as discriminatory
  • Where the employer fails to prove the reason for termination, the termination is deemed unfair under Section 43 of the Employment Act

Court orders

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  1. 1.Three months' salary in compensation for unfair termination of Kshs. 23,262
  2. 2.One month's salary in lieu of notice of Kshs. 7,754
  3. 3.Salary underpayment of Kshs. 1,524 (Kshs. 254 x 6)
  4. 4.Prorata leave of Kshs. 2,709
  5. 5.Total award of Kshs. 35,249 to be paid by the Respondent
  6. 6.The Respondent to pay the costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 2
  • Employment Act, 2007Section 37
  • Employment Act, 2007Section 45(3)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 31(1)
  • Employment Act, 2007Section 28(1)(b)
  • Employment Act, 2007Section 10
  • Regulation of Wages (General) (Amendment) Order, 2010minimum monthly salary provisions

Cases cited (2)

  • Wilfred Bukachi Opwaka Vs Ready Consultancy Company Limited
    Industrial Court Cause No 471 of 2012
  • Samuel G. Momanyi Vs. the Hon. Attorney General & SDV Transami Kenya Ltd
    (2012 eKLR)
Jurisdiction invoked
Employment Act, 2007 (Industrial Court jurisdiction over employment disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "WILLIAM OPETU V MUKESH PATEL [2013] KEELRC 336 (KLR)", Case Analysis (2013). Cause 909 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/336/eng@2013-05-14

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