Rose Amanya Kong’ani v Vegpro Kenya Limited [2013] KEELRC 857 (KLR)

The employer is statutorily required to keep records of the date of commencement of employment and to produce them in court proceedings. RW1 did not know when the Claimant was recruited, and there were no records for 1998 to 2003. In the absence of such evidence contradicting the Claimant's testimony, the court adopted the Claimant's asserted start date under section 10(7).

The Respondent produced unsigned extracts of attendance records prepared after the claim was filed rather than the originals signed by the Claimant, and there were no records for 1998 to 2003. RW1 did not extract the information and did not know when it was done. Section 10(7) placed the burden on the employer, which it failed to discharge, leaving the Claimant's uncontroverted allegation to be presumed true.

Although the bus pass described the Claimant as a casual employee and she was paid daily in cash, she had worked for more than 3 months. Section 37 provides for conversion of casual employment to a term contract after one month's continuous work or three months' intermittent work, and this court's earlier decisions in Opwaka and Anyanga so held.

RW1 did not know how the employment was terminated and the Respondent adduced no evidence that the Claimant absconded duty. Her testimony that she was terminated after seeking sick leave was therefore uncontroverted. Section 41 prescribes termination procedure, and section 46(b) provides that an employee's proposal to take entitled leave is not a fair reason for dismissal.

Having converted to a term contract, the Claimant was entitled under section 37(3) to the terms she would have enjoyed under the Act. She received 28 days' notice pay, leave for 116 months at 1.75 days per month, and service gratuity at 15 days per year since she was not in NSSF or any gratuity scheme. Compensatory damages were assessed at 9 months' salary under section 49(4).