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ELRCPartially AllowedConsolidated causes including Cause No. 178 of 2013· [2014] KEELRC 869 (KLR)

Nelson Ogeto Mogaka & 15 others v Geothermal Development Company Limited [2014] KEELRC 869 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
21 March 2014
BOByram Ongaya
4,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that long-serving 'casual' workers become permanent by law, and employers must prove a valid reason before firing.

What this practically means

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Executive summary

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Two consolidated causes were filed by claimants formerly employed by the respondent as skilled and unskilled labourers, seeking declarations that backdated temporary contracts dated 4 April 2011 were null and void, plus terminal dues, costs and interest. The respondent sought dismissal of the claims. The court framed four issues: sufficiency of the two claimant witnesses' evidence, conversion of casual employment under section 37 of the Employment Act, fairness of termination, and entitlement to remedies. On the first issue, the court held two witnesses' evidence sufficient, guided by section 20(1) of the Industrial Court Act which frees the Court from strict evidentiary rules. On conversion, the court found the claimants' casual employment converted under the second limb of section 37(1), since the work spanned more than three months; the backdated three-month contract had lapsed on 29 April 2011 before the 4 July 2011 termination. On fairness, the court found manifest bad faith in the backdated contract, continued employment and sudden termination without notice, and held the reason of materials running out unproven under section 43, rendering the termination unfair. The court also upheld earlier holdings that section 45(3)'s thirteen-month threshold is unconstitutional. Remedies were partly granted: nine months' compensation, house allowance, leave pay, notice pay and certificates of service were awarded; claims for overtime, rest days, public holidays, tools allowance and severance pay failed. Judgment was delivered at Nakuru on 21 March 2014, with costs awarded to the claimants.

Key legal issues

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01

Sufficiency of two witnesses' evidence for consolidated claimants

Holding

The evidence of the two claimants' witnesses was sufficient for all claimants given the pleadings, documents and the Industrial Court Act's relaxed evidentiary rules.

Reasoning

The court applied section 20(1) of the Industrial Court Act, 2011 which frees the Court from strict adherence to evidentiary rules and technicalities. The material facts - terms of payment and the backdated contract - were pleaded and undisputed. The character of the respondent's acts and the circumstances were clear with certainty and particularity, and it was for the claimants to choose the efficient manner of presenting their case.

p. 4
02

Conversion of casual employment under section 37(1) of the Employment Act

Holding

The claimants' casual employment converted under the second limb of section 37(1); the backdated term contract had lapsed by effluxion of time before the 4.07.2011 termination.

Reasoning

The claimants worked over a month without breaks per the check-in and check-out register, which the respondent failed to produce. In any event the work was such that it spanned more than three months, triggering the second limb. The three-month backdated contract lapsed on 29.04.2011, so at termination on 4.07.2011 the claimants were casual workers protected by section 37.

p. 6
03

Fairness of termination

Holding

The termination was unfair under section 43 of the Employment Act; the reason of materials running out was not established and no hearing or notice was accorded.

Reasoning

The backdated contract, continued employment beyond the contract period and sudden termination without notice amounted to manifest bad faith. The claimed reason, that materials ran out, was not proven to exist at termination, and the respondent remained silent on the recall arrangement. Section 43 required the respondent to prove the reason for termination.

p. 8
04

Remedies

Holding

Claimants entitled to compensation of nine months' pay, house allowance, leave pay, notice pay and certificates of service; claims for overtime, rest days, public holidays, tools allowance and severance failed.

Reasoning

Special claims not strictly proved failed. Under sections 28, 31, 35, 36, 37 and 51 of the Act the claimants were entitled to house allowance, leave, notice pay and certificates of service. Compensation of nine months' salaries was awarded considering length of service, the promise of recall, and absence of contributing conduct by the claimants.

p. 8

Legal principles established

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  • Two claimant witnesses' evidence may suffice for a consolidated claim since the Industrial Court acts without undue regard to technicalities
  • Casual employment converts under section 37(1) of the Employment Act where the nature of the work spans at least three months even if service was broken
  • Section 45(3) of the Employment Act restricting unfair termination complaints to employees of thirteen months is unconstitutional
  • An employer must prove the reason for termination under section 43 failing which the termination is unfair

Court orders

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  1. 1.Declaration that the termination of the claimants' respective employment by the respondent was unfair
  2. 2.Respondent to deliver to each claimant a certificate of service by 1.05.2014
  3. 3.Respondent to pay each claimant pay of 9 months at the last hourly rate times eight hours per day for 28 days per month for the unfair termination
  4. 4.Respondent to pay each claimant house allowance as set out in the respective statements of claim
  5. 5.Respondent to pay each claimant pay for leave at two and half days pay per completed month of service at 8 hours times the last agreed hourly rate
  6. 6.Respondent to pay each claimant pay in lieu of termination notice at the last hourly rate for 28 days for a maximum of 8 hours per day
  7. 7.Payment to be made by 1.5.2014 failing which interest to run at court rates from the date of suit till full payment
  8. 8.Claimants to compute, file and serve the amounts by 28.3.2014 for recording of quantum
  9. 9.Respondent to pay the costs of the suit

Authorities

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Legislation

  • Employment Act, 2007sections 2, 28(1), 31, 31(2)(a), 35(1)(c), 35(1), 36, 37(1)-(5), 40, 43, 45(3), 51, 5(2)
  • Industrial Court Act, 2011section 20(1)
  • Constitution of Kenya, 2010Articles 28, 41, 41(1), 47, 48, 50(1)

Cases cited (5)

  • Barka Saidi –Versus- Mohemaedi Saidi
    Civil Appeal No. 181 of 1969 [1970] THCD N95
  • The Standard Limited –Versus- Joseph Leo Ochieng
    Civil Appeal No. 189 of 2004
  • Nizar Virani T/A Kisumu Beach Resort –Versus- Phoenix of East Africa Assurance Company Limited
    [2004]eKLR
  • Linus Barasa Odhiambo –Versus- Wells Fargo Limited
    Industrial Cause No. 275 of 2012
  • Samuel G. Momanyi – Versus – The Honourable Attorney General and SDV Transami Kenya Ltd
    High Court Petition No. 341 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Industrial Court Act, 2011 and the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nelson Ogeto Mogaka & 15 others v Geothermal Development Company Limited [2014] KEELRC 869 (KLR)", Case Analysis (2014). Consolidated causes including Cause No. 178 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/869/eng@2014-03-21

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