Kenya Union of Domestic, Hotels, Education Institution, Hospital & Allied Workers v Holy Rosary Girl's Boarding Primary School [2013] KEELRC 957 (KLR)
The bottom line
#Kenya's Employment Court ruled that employees who refuse contract renewals can lose their jobs, but long-serving verbal employees get full termination protections.
What this practically means
#Executive summary
#Key legal issues
#Whether refusal to sign fresh contracts and subsequent replacement amounted to unfair termination for the 2nd to 4th claimants
Their dismissal was justified; they were on yearly renewable contracts with gratuity and refused renewal
All three claimants had previously been on yearly contracts that were renewed with gratuity paid at the end of each contract. When asked to sign a fresh contract for 2011 they declined. The court found refusal of renewal was their own choice, making them the authors of their own misfortune, and dismissed their claims.
Whether the 1st claimant, employed verbally, was unfairly terminated
Yes; having worked over three months, his service was deemed permanent and monthly under Section 37(1) of the Employment Act 2007, and termination without notice contravened the law
The 1st claimant was employed verbally in 1998 as a cook and never signed any contract. Under Section 37(1), continuous work of three months or more converts the engagement into monthly terms attracting Section 35(1)(c) notice of 28 days. He received no notice, so termination was unlawful, entitling him to notice pay, service pay and compensation.
Whether claimants proved underpayment
No
The claimants alleged they were underpaid relative to existing rates but did not exhibit the actual amounts paid against those rates. They instead relied on dues in a CBA signed in 2011, which did not apply because their services were terminated in December 2010. The burden of proving underpayment was therefore not discharged.
Legal principles established
#- Where an employee has previously been engaged on renewable contracts with gratuity, refusal to sign a fresh contract is at the employee's own peril and the employer may lawfully replace them
- A casual employee engaged for a period exceeding three months is deemed to be employed on monthly terms under Section 37(1) of the Employment Act 2007 and termination requires notice under Section 35(1)(c)
Court orders
#- 1.Award to 1st claimant of 1 month salary in lieu of notice Kshs 5,494
- 2.Award to 1st claimant of service pay of 15 days salary for each year worked w.e.f. 1995 to 2010, being 15 years x 2,747 = Kshs 41,205
- 3.Award to 1st claimant of 1 year salary for wrongful termination, Kshs 65,928 (total award Kshs 112,627)
- 4.Each claimant to be issued with a certificate of service
- 5.Each party to bear its own costs
- Jurisdiction invoked
- Employment and labour relations dispute filed by memorandum of claim under the Employment Act 2007; no express constitutional/statutory jurisdiction provision stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Education Institution, Hospital & Allied Workers v Holy Rosary Girl's Boarding Primary School [2013] KEELRC 957 (KLR)", Case Analysis (2013). Cause No 220/2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/957/eng@2013-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.