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ELRCPartially AllowedCause No 1835 of 2011· [2013] KEELRC 835 (KLR)

Kenya Engineering Workers Union v Steel Makers Limited [2013] KEELRC 835 (KLR)

Industrial Court of Kenya at Nairobi
18 September 2013
MOMaureen Onyango
894 words in judgment
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The bottom line

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A Kenyan employer who kept a worker on casual terms for nine years was ordered to pay full terminal benefits and compensation after unfairly firing him verbally.

What this practically means

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Executive summary

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The Kenya Engineering Workers Union filed a Memorandum of Claim on 27th October 2011 on behalf of grievant Jonah Wekesa against Steel Makers Limited. The Grievant was employed on 6th February 2003 as a general labourer on daily wages and worked for 9 years, earning Kshs.324 per day at termination. His services were terminated verbally on 7th February 2011 by the Human Resources Manager after a dispute over torn work clothes, for which the Grievant was not at fault - the supervisor confirmed the company policy was to issue clothes after one month. He was not given a hearing and received no terminal benefits. The Claimant reported the dispute to the Minister for Labour on 22nd February 2011; a conciliator convened two joint meetings but the Respondent did not attend, and an unresolved-dispute certificate issued. The Respondent, though served, never filed a Reply, never attended conciliation, and never appeared in court. The court proceeded exparte on 27th May 2013 after confirming service. Finding no defence before it, the court presumed the Respondent had no defence or no regard for due process, and held it unlawful to keep the Grievant as a casual for 9 years contrary to Section 37 of the Employment Act and to terminate him without a hearing. The court awarded the Claimant the orders as prayed: 3 days worked (Kshs.972), one month's notice pay (Kshs.9,720), annual leave for 9 years at 26 days per year (Kshs.75,816), service pay for 9 years (Kshs.43,740) and 12 months' compensation (Kshs.101,088), totalling Kshs.231,336. Reinstatement, the primary prayer, was not ordered. No costs order was made.

Key legal issues

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01

Unlawful retention of an employee as a casual for 9 years

Holding

Keeping the Grievant as a casual for 9 years was unlawful, engaging Section 37 of the Employment Act

Reasoning

The Grievant worked from 6th February 2003 to 7th February 2011 as a daily wage earner, earning Kshs.324 per day at termination. Counsel submitted it was unlawful for the Respondent to keep him a casual for 9 years contrary to Section 37 of the Employment Act. The Respondent filed no defence, so the claim was uncontested and the court granted the orders as prayed.

p. 2
02

Unfair and unlawful verbal termination without hearing

Holding

The verbal termination without notice or hearing was unlawful, warranting notice pay and 12 months' compensation

Reasoning

The Grievant's services were terminated verbally on 7th February 2011 by the Human Resources Manager after a dispute about torn work clothes for which the Grievant was not at fault. He was not given a hearing and received no terminal benefits. The court awarded one month's salary in lieu of notice, service pay, accrued leave and 12 months' compensation.

p. 2

Legal principles established

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  • A casual employee engaged continuously for a prolonged period falls within the protection of Section 37 of the Employment Act and is entitled to notice, leave, service pay and compensation for unlawful termination
  • Where a respondent is properly served and fails to file a defence or attend court, the court may presume it has no defence and grant the claim as prayed

Court orders

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  1. 1.Payment of 3 days worked at Kshs.324 per day - Kshs.972.00
  2. 2.Payment of 1 month's salary in lieu of notice (30 x 324) - Kshs.9,720.00
  3. 3.Payment of annual leave for 9 years at 26 days per year (26 x 9 x 324) - Kshs.75,816.00
  4. 4.Payment of service pay for 9 years - Kshs.43,740.00
  5. 5.Payment of 12 months' compensation - Kshs.101,088.00
  6. 6.Total award of Kshs.231,336.00 payable by the Respondent to the Grievant

Authorities

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Legislation

  • Employment ActSection 37
Jurisdiction invoked
Reference of an unresolved labour dispute to the Industrial Court following conciliation before the Minister for Labour under the Labour Relations Act; dispute reported by letter dated 22nd February 2011

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, "Kenya Engineering Workers Union v Steel Makers Limited [2013] KEELRC 835 (KLR)", Case Analysis (2013). Cause No 1835 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/835/eng@2013-09-18

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