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ELRCPartially AllowedCause No 690 of 2013· [2014] KEELRC 584 (KLR)

George Ochieng Amolo v Bidco Oil Refineries [2014] KEELRC 584 (KLR)

Industrial Court of Kenya
20 March 2014
LNLINNET NDOLO
853 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed as a Spray Painter from June 2012 until his dismissal on 10th January 2013, sued Bidco Oil Refineries for unfair termination and terminal dues, seeking a declaration of unlawful termination, one month's salary in lieu of notice, prorata leave, and twelve months' salary in compensation. The Respondent denied terminating the Claimant and asserted he was a casual employee paid on a daily basis, not entitled to the reliefs sought. The court framed three issues: the nature of the employment, whether the termination was unfair, and the reliefs due. Applying Section 37 of the Employment Act, 2007, and following the decision in Wilfred Bukachi Opwaka v Ready Consultancy Company Limited, the court held that although the Claimant was paid daily, he worked continuously and the intervening days were ordinary off days, so his employment converted to monthly contract terms. On the termination, the Respondent gave only a general denial and failed to call its Manager, Kupal Singh, who was the material witness; the court therefore adopted the Claimant's account of verbal dismissal and found it unfair under Section 45. The court awarded two months' salary in compensation, one month's salary in lieu of notice, and prorata leave, computed on a monthly salary of Kshs. 19,364, totalling Kshs. 64,869, plus costs of the suit. The claim succeeded only partially, as the twelve months' compensation sought was reduced to two months.

Key legal issues

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01

Nature of the Claimant's employment

Holding

Although paid on a daily basis, the Claimant worked continuously and was in law a monthly contract employee under Section 37 of the Employment Act, not a casual employee

Reasoning

The Respondent produced a casual payroll showing the Claimant worked on shifts of 5 to 11 days with off days in between from June 2012 to January 2013. Applying Section 37 of the Employment Act, 2007, the court held that the gaps in work were normal off days taken by any regular employee, so continuous employment of over one month converted the engagement to monthly terms.

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02

Unfair termination

Holding

The verbal termination of the Claimant's employment was unfair within the meaning of Section 45 of the Employment Act, 2007

Reasoning

The Claimant testified he was verbally dismissed by the Respondent's Manager, Kupal Singh. The Respondent offered only a general denial and did not call Kupal Singh, who was the material witness to the circumstances of termination. In the absence of any explanation for that failure, the court adopted the Claimant's account and found the verbal termination unfair.

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03

Remedies for unfair termination and entitlement to prorata leave

Holding

The Claimant was awarded two months' salary in compensation, one month's salary in lieu of notice, and prorata leave, tabulated on a monthly salary of Kshs. 19,364

Reasoning

Having found the Claimant was not a casual employee, he became entitled to prorata leave. The court exercised its discretion under the Employment Act to award two months' salary rather than the twelve months sought, and computed the award on the basic daily rate of Kshs. 645.46, producing a total award of Kshs. 64,869 plus costs.

p. 2

Legal principles established

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  • Under Section 37 of the Employment Act, 2007, an employee employed on casual basis who works continuously for at least one month automatically converts to monthly contract terms
  • Where an employer fails to call a material witness to controvert the claimant's account of the termination, the court may adopt the claimant's account

Court orders

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  1. 1.Award of 2 months' salary in compensation for unfair termination (Kshs. 38,728)
  2. 2.Award of 1 month's salary in lieu of notice (Kshs. 19,364)
  3. 3.Award of prorata leave (Kshs. 6,777)
  4. 4.Total award of Kshs. 64,869
  5. 5.Respondent to pay the costs of the case

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 37
  • Employment ActSection 45

Cases cited (1)

  • Wilfred Bukachi Opwaka Vs Ready Consultancy Company Limited
    Industrial Court Cause No 471 of 2012
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court (dispute over unfair termination of employment)

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, "George Ochieng Amolo v Bidco Oil Refineries [2014] KEELRC 584 (KLR)", Case Analysis (2014). Cause No 690 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/584/eng@2014-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.