Mercy Wangari kibara & 11 others v Beiersdorf (BDF) Each Africa Limited [2013] KEELRC 844 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Status of the Claimants' employment
Although engaged on temporary/casual terms, the Claimants worked continuously over years, so their contracts were deemed monthly contracts by operation of law under sections 37 and 35(1) of the Employment Act
RW1 admitted the Claimants worked on temporary engagements but produced no records showing breaks in service, only weekend breaks. Section 37(1) of the Employment Act deems a casual contract a monthly contract where the employee works the equivalent of one month or more continuously. The employer, having failed to disprove continuous service, could not rely on the temporary labels. The court therefore treated the Claimants as monthly contractual employees entitled to statutory protections.
Burden of proof on employment records
The Respondent, as employer, bore and failed to discharge the burden of disproving the alleged terms and dates of employment
Section 10(6) and (7) of the Employment Act obliges an employer to keep records of dates of engagement and termination; failure to produce written particulars shifts the burden to the employer. The Respondent asserted breaks in service and payment of all dues but produced no records to prove either. Its bare assertions could not displace the Claimants' evidence and Mpesa records, so the pleaded dates of engagement and non-payment of the last week were accepted.
Entitlement to notice, salary arrears and accrued leave
Having terminated the Claimants' employment by transferring them without benefits, the Respondent owed each a month's pay in lieu of notice; unpaid last week's wages and accrued leave were also payable
The transfer to Manpower without transfer of accrued benefits amounted to termination, requiring notice under sections 35(1)(c) and 36. Mpesa statements proved non-payment of the final week. The Respondent's denial of annual leave was an admission that none was taken or paid, and section 28 entitles every employee to 21 days' leave per year without excluding casual or temporary employees.
Compensation for unlawful termination
Maximum compensation of 12 months' salary awarded to each Claimant under section 49 of the Employment Act
Relying on section 49(1)(c) and the factors in section 49(4), the court found the Claimants were effectively declared redundant, kept on temporary terms in breach of the law, and unfairly denied continued employment for demanding their terminal benefits through counsel. These aggravating circumstances justified the maximum award of 12 months' gross monthly salary.
Legal principles established
#- Where a casual employee works continuously for the equivalent of at least one month, or performs work that cannot reasonably be completed within three months, the contract is by operation of law deemed to be a monthly contract under section 35(1)(c) of the Employment Act
- An employer who fails to produce employment records bears the burden of proving or disproving an alleged term of the contract, including dates of engagement and termination
- Transfer of an employee's services to another employer without transfer of accrued benefits effectively terminates the employment with the first employer, obliging notice or pay in lieu
Court orders
#- 1.Award to each Claimant of Kshs.2,450 for the last week's wages (except 5th and 6th Claimants who did not produce Mpesa accounts)
- 2.Award to each of the 12 Claimants of 28 days' salary as pay in lieu of notice (Kshs.9,800)
- 3.Accrued leave awards per Claimant as itemised (e.g. 1st Claimant Kshs.80,850)
- 4.Compensation of 12 months' salary (Kshs.117,600) to each Claimant for unlawful termination
- 5.Claim for gratuity dismissed
- 6.Judgment entered for the Claimants against the Respondent in the amounts stated per Claimant (1st Claimant Kshs.210,650 through 12th Claimant Kshs.203,350)
- 7.Costs of the Claim awarded to the Claimants
- Jurisdiction invoked
- Section 12(3)(v) and (vi) of the Industrial Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mercy Wangari kibara & 11 others v Beiersdorf (BDF) Each Africa Limited [2013] KEELRC 844 (KLR)", Case Analysis (2013). Memorandum of Claim dated 16th September 2010, filed 23rd September 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/844/eng@2013-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.