Fredrick Kerage v DPL Festive Limited [2013] KEELRC 836 (KLR)
The bottom line
#A Kenyan worker dismissed without a fair hearing won Kshs.246,648 because 'casual' workers become permanent after one month of continuous employment.
What this practically means
#Executive summary
#Key legal issues
#Right of direct access to the Industrial Court by a union member
The claim was properly before the court; no law bars an employee whose dispute was not resolved to his satisfaction from filing directly.
The court distinguished disputes filed by or against trade unions under the Labour Relations Act from individual employee claims under section 87 of the Employment Act and the Industrial Court Act. Since the union's meeting with the Respondent did not resolve the dispute to the Claimant's satisfaction, and no law barred him, he could pursue his claim directly in the Industrial Court.
Status of the Claimant's employment
The Claimant was not a casual employee; he had worked continuously from 2005 and his employment converted to a term contract by operation of section 37(1).
The Respondent did not contest that the Claimant was employed in April 2005, yet alleged he was a casual. Having worked continuously for nearly six years, section 37(1) of the Employment Act automatically converted the casual employment into a term contract after the first month of continuous service.
Fairness of termination
The dismissal was both substantively and procedurally unfair - it was verbal, without hearing before the decision, and the post-dismissal union meeting was not a valid hearing or settlement.
The Claimant was dismissed on accusation of eating bread without being given an opportunity to defend himself. The meeting with the union occurred after dismissal and in his absence, so it could not constitute a section 41 hearing. The purported agreement for an ex-gratia payment was not a settlement of the unfair termination claim.
Entitlement to remedies
Claimant awarded one month's notice, service gratuity at 18 days per year per the CBA, 23 leave days per year for 6 years, and 8 months' compensation; house allowance claim dismissed.
The Respondent did not contest the notice figure, non-taking of leave, or the compensation prayer, and produced no employment records. The court applied the CBA rates for gratuity and leave, and awarded 8 months' salary as compensation considering the dismissal circumstances and length of service.
Legal principles established
#- An employee who is a member of a trade union may file a claim directly in the Industrial Court; the Labour Relations Act dispute-resolution machinery applies only to disputes by or against trade unions.
- Casual employment automatically converts to a term contract after one month of continuous service.
- A hearing conducted after dismissal and in the employee's absence does not satisfy Section 41 of the Employment Act.
Court orders
#- 1.Award of Kshs.14,340 on account of notice
- 2.Award of service gratuity at 18 days per year worked, Kshs.51,624
- 3.Award of leave pay of Kshs.65,964 for 6 years
- 4.Award of compensation of 8 months salary, Kshs.114,720
- 5.Judgment for the Claimant against the Respondent for Kshs.246,648 and costs
- 6.Respondent to pay the Claimant's costs of the case
- Jurisdiction invoked
- Employment Act section 87 and the Industrial Court Act - right of an employee to file a dispute directly in the Industrial Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Kerage v DPL Festive Limited [2013] KEELRC 836 (KLR)", Case Analysis (2013). Memorandum of Claim dated 28th March 2012 (Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/836/eng@2013-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.