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ELRCPartially AllowedCause No 220/2013· [2013] KEELRC 957 (KLR)

Kenya Union of Domestic, Hotels, Education Institution, Hospital & Allied Workers v Holy Rosary Girl's Boarding Primary School [2013] KEELRC 957 (KLR)

Industrial Court (Employment and Labour Relations Court)
19 December 2013
1,040 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Four employees of the respondent school, through their union KUDHEIHA, claimed unfair termination after they declined to sign fresh contracts in 2010/2011 and were replaced following fresh interviews. The 2nd, 3rd and 4th claimants testified they had previously served on yearly renewable contracts with 16% gratuity paid at the end of each contract, while the 1st claimant, a cook employed verbally in 1998, had never signed any contract. The respondent, which called no witnesses, contended the claimants were engaged on fixed-term contracts and simply opted not to renew. The court framed three issues: whether the refusal to sign fresh contracts was justifiable, whether the replacement of the claimants was justified, and whether the claimants were entitled to the prayers sought. The court held that the 2nd, 3rd and 4th claimants, being previously on contract with gratuity, were the authors of their own misfortune by refusing to renew, and their claims were dismissed. For the 1st claimant, Section 37(1) of the Employment Act 2007 converted his verbal engagement of over three months into monthly terms attracting Section 35(1)(c) notice; termination without notice contravened the law. He was awarded one month's salary in lieu of notice, service pay of 15 days' salary per year worked, and one year's salary for wrongful termination, totalling Kshs 112,627. The claim for underpayment failed for want of proof, each claimant is to receive a certificate of service, and each party bears its own costs.

Key legal issues

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01

Whether refusal to sign fresh contracts and subsequent replacement amounted to unfair termination for the 2nd to 4th claimants

Holding

Their dismissal was justified; they were on yearly renewable contracts with gratuity and refused renewal

Reasoning

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.

p. 2
02

Whether the 1st claimant, employed verbally, was unfairly terminated

Holding

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

Reasoning

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.

p. 2
03

Whether claimants proved underpayment

Holding

No

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Award to 1st claimant of 1 month salary in lieu of notice Kshs 5,494
  2. 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. 3.Award to 1st claimant of 1 year salary for wrongful termination, Kshs 65,928 (total award Kshs 112,627)
  4. 4.Each claimant to be issued with a certificate of service
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Employment Act 2007Section 37(1)
  • Employment Act 2007Section 35(1)(c)
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

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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 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.