Tailors and Textiles Workers Union v Stitch Masters Limited [2014] KEELRC 106 (KLR)
The bottom line
#A Kenyan employer who called a tailor's job 'piece work' still had to pay him the legal minimum wage after nearly three years of continuous work.
What this practically means
#Executive summary
#Key legal issues
#Piece-work contracts and entitlement to statutory minimum wage
A piece-work arrangement is lawful under Section 18(1)(a) and (b) of the Employment Act, but an employee continuously engaged remains entitled to the statutory minimum wage
The Court accepted that task/piece-work contracts are lawful under Section 18 of the Employment Act 2007. However, because the Grievant provided services continuously for two years and nine months, the employer could not rely on the piece-work characterisation to avoid paying the statutory minimum wage applicable to a tailor during the period of engagement.
Burden of proof where no written contract produced
The employer bears the burden of proving or disproving terms of employment where it fails to produce a written contract as required by Section 9(2)
Section 9(2) obliges the employer to draw up a written contract where work could not reasonably be completed within three months. No such contract was availed. Under Section 9(7), failure to produce the written contract places the burden of proving or disproving alleged terms on the employer. The Claimant made out a prima facie case of continuous service, and the Respondent failed to rebut it.
Wrongful and unfair termination
The claim of unfair termination failed; the engagement was piece work dependent on availability of work
The Grievant alleged dismissal for leading colleagues to join a union, while the Respondent said his work ended after a disagreement with the Quality Controller. The Court found it common cause that he worked only when there was piece work available, and the Claimant did not discharge the burden of showing unlawful or unfair termination.
Terminal benefits: notice, house allowance and service gratuity
Claimant awarded one month's notice pay, 15% house allowance for the period of service, and service gratuity as he was not registered with NSSF
Having found continuous engagement for two years and nine months, the Court held the Claimant entitled to terminal benefits on termination. It awarded notice pay, 15% house allowance under the general wage order, and service gratuity under Section 35(5) read with Section 35(6)(d) of the Employment Act since he was not registered with NSSF or any gratuity scheme.
Legal principles established
#- Where an employee proves continuous work, the employer cannot escape the statutory minimum wage by characterising the engagement as piece work
- If an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment falls on the employer
Court orders
#- 1.Award of Kshs.162,150 being underpayment at the minimum wage of Kshs.10,405 per month for 30 months from May 2007 to October 2009
- 2.Award of one month salary in lieu of notice of Kshs.10,405
- 3.Award of 15% house allowance for two years and nine months in the sum of Kshs.51,504
- 4.Award of service gratuity of Kshs.10,405 calculated at 15 days salary for each completed year of service under Section 35(5) as read with Section 35(6)(d) of the Employment Act
- 5.Respondent to provide a certificate of service to the Claimant within fourteen days from the date of judgment
- 6.Total award of Kshs.234,464 with interest at Court rates from date of judgment until payment in full
- 7.Respondent to pay the costs of the suit
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over a labour dispute reported to the Ministry of Labour and conciliated under the Labour Relations framework (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tailors and Textiles Workers Union v Stitch Masters Limited [2014] KEELRC 106 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/106/eng@2014-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.