Henry Kakai & 10 others v Debendra Kamat T/A Swadish Foods [2013] KEELRC 689 (KLR)
The bottom line
#Kenya's Industrial Court ruled that employers must notify a Labour Officer before starting a redundancy, and long-serving 'casual' workers are actually protected employees.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 40 redundancy procedure
The redundancy declaration was procedurally unfair because the Labour Officer was not notified before the process commenced and no selection criteria were applied where relevant; the redundancy was nonetheless substantively fair given the business closure
The court found the section 40 conditions mandatory. The respondent only copied the Labour Officer on an ongoing process, contrary to the statutory scheme requiring prior notification so the officer may advise on modalities. However, the respondent had genuinely closed the business after losing its licence at Gymkhana Club, so the redundancy itself was inevitable and substantively fair; only the procedure was flawed. Compensation for unfair termination was therefore refused while redundancy dues were awarded.
Status of the claimants as casuals
The claimants described as casuals were in fact employees protected by section 37 of the Employment Act and entitled to notice pay, off duty pay and severance
The respondent argued the claimants worked on and off with weekly breaks and so were casuals. The court applied section 37(1)(b): employees serving work not reasonably expected to be completed within a short period, continuously serving one employer with rest breaks, are not casuals. The respondent could have contracted them into term, part-time or monthly contracts. Only claimants 3, 4 and 10 were on monthly contracts.
Off duty pay, leave and overtime
The claimants were owed pay for their off duty rest days; the overtime claim was offset against these compensatory rest days
Under section 27(2) of the Employment Act a rest day after continuous work is paid for. The respondent admitted the claimants took a week off each month without pay. Having found the claimants were not casuals, the court awarded off duty pay. It then took a generous approach, treating 7 rest days per month (84 days a year) as compensating the 21 days annual leave per year, the rest days and the overtime, so that no separate overtime award was made.
Legal principles established
#- The conditions for redundancy in section 40 of the Employment Act are mandatory and not left to the choice of the employer
- Notice to the Labour Officer must precede notice to the employees; copying the Labour Officer on an already ongoing process offends the redundancy procedure
- An employee who serves one employer continuously, with rest breaks, is not a casual within section 37(1)(b) of the Employment Act
- Failure to contract long-serving casual-type employees into protected contract forms amounts to an unfair labour practice outlawed under Article 41 of the Constitution
Court orders
#- 1.A declaration that the declaration of redundancy was procedurally unfair and the claimants are owed their redundancy dues
- 2.An award of notice pay for one month salary to each claimant, severance pay at 15 days pay for each completed year, and off duty pay, all amounting to Kshs.804,417.85
- 3.The respondent to issue all the claimants with a Certificate of Service within 14 days
- 4.Costs awarded to the claimants
- Jurisdiction invoked
- Referral as a labour dispute to the Industrial Court of Kenya under the Employment Act and the Industrial Court's jurisdiction over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Liu Ching Liang v Webwave Electric Manufucturing (K) Co. Ltd & 2 others [2016] KEELRC 36 (KLR)[2016] KEELRC 36 (KLR)18 Nov 2016applied
- Catherine M. Raini v CMC Holding Ltd [2014] KEELRC 780 (KLR)[2014] KEELRC 780 (KLR)30 Jan 2014applied
- Timothy Mabeta Kambuni v Bedson East Africa Limited [2013] KEELRC 941 (KLR)[2013] KEELRC 941 (KLR)18 Dec 2013applied
Cite this brief
#Cite this brief
Caselaw, "Henry Kakai & 10 others v Debendra Kamat T/A Swadish Foods [2013] KEELRC 689 (KLR)", Case Analysis (2013). Cause No. 2449 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/689/eng@2013-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.