WILLIAM OPETU V MUKESH PATEL [2013] KEELRC 336 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant's casual employment was converted to a term contract
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
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.
Whether Section 45(3) of the Employment Act barred the Claimant's unfair termination claim
Section 45(3) had been declared unconstitutional and could not bar the claim
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.
Whether the termination was unfair
The termination was unfair within the meaning of Section 45 because the Respondent failed to prove any reason for termination
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.
Entitlement to house allowance and prorata leave
The house allowance claim was subsumed in an underpayment award and prorata leave was awarded as a statutory right even though not pleaded
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.
Legal principles established
#- 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
#- 1.Three months' salary in compensation for unfair termination of Kshs. 23,262
- 2.One month's salary in lieu of notice of Kshs. 7,754
- 3.Salary underpayment of Kshs. 1,524 (Kshs. 254 x 6)
- 4.Prorata leave of Kshs. 2,709
- 5.Total award of Kshs. 35,249 to be paid by the Respondent
- 6.The Respondent to pay the costs of the case
- Jurisdiction invoked
- Employment Act, 2007 (Industrial Court jurisdiction over employment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Titus Mutiso Mbindyo v Motor Boutique Limited [2019] KEELRC 1529 (KLR)[2019] KEELRC 1529 (KLR)27 May 2019
- Josephine Kiloto Matolo v Ragos Trading Company Limited [2016] KEELRC 1303 (KLR)[2016] KEELRC 1303 (KLR)18 Apr 2016
- Francis Nthenge Mwovwa v Auto Spring Manufacturers Limited (Cause 2224 of 2012) [2014] KEIC 101 (KLR)[2014] KEIC 101 (KLR)14 Jul 2014
- Janet Kanini Muola v East African Growers Ltd [2014] KEELRC 1188 (KLR)[2014] KEELRC 1188 (KLR)26 Jun 2014
Cite this brief
#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.