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ELRCPartially AllowedNot stated in the judgment· [2014] KEELRC 918 (KLR)

Francis Runji Karingi & 5 others v China Hebei Water Conservancy Engineering Bureau [2014] KEELRC 918 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
31 March 2014
ANAbuodha J N
1,460 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 workers paid monthly are not casuals and are owed full terminal benefits and wage deficits.

What this practically means

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Executive summary

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In this first-instance employment claim, the Industrial Court at Nyeri, per Abuodha J N, determined two framed issues: the status of the claimants (casual or not) and the applicable minimum wage order vis-a-vis actual wages paid. The claimants, hired to rehabilitate water canals at Mwea Rice Plantation, contended they were regular employees entitled to minimum wage under Legal Notice 94 of 2004, quantifying a wage deficit of about Kshs.36 million against bank statements of payments received. The respondent maintained they were casuals engaged when and if needed, paid daily per signed job cards, with a Muster Roll showing absences. The court held that under section 2 of the Employment Act a casual employee is paid at the end of each day and engaged for not more than 24 hours at a time. As the undisputed evidence showed the claimants signed daily worksheets but were paid monthly into bank accounts and worked beyond 24 hours, their original casual engagement was transformed into term contracts under section 37(1), with section 37(3) conferring full statutory entitlements. The court declined to order reinstatement under section 37(4) since the claimants' contracts had been terminated and the respondent's work was seasonal and contract-dependent. Instead, it directed counsel and the Embu County Labour Officer to compute terminal benefits (one month's notice pay, house allowance at one-third of salary, 21 days leave per year worked for those with a year or more, and service pay at 15 days per year), identify the applicable wage order, work out any wage deficits, and file a report within 60 days for adoption as the court's final order.

Key legal issues

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01

Whether the claimants were casual employees or term contract employees

Holding

They were converted to term contract employees under section 37(1) of the Employment Act

Reasoning

The court applied the statutory definitions in section 2 of the Employment Act. The undisputed facts were that the claimants signed daily worksheets but were paid monthly into their bank accounts. Since a casual employee is one paid at the end of each day and engaged for no more than 24 hours at a time, the claimants' mode of engagement fell outside that definition. Section 37(1) deems the contract of such a casual employee converted to monthly terms, and section 37(3) entitles them to full statutory terms of service.

p. 3
02

The remedy available where converted employees' contracts have been terminated

Holding

Reinstatement is not possible; instead terminal benefits are to be computed by the parties with the County Labour Officer and placed before the court for adoption

Reasoning

The court found itself empowered by section 37(4) to vary terms of service but noted the claimants were no longer working and the respondent's work was seasonal, depending on contract awards. Reinstatement was therefore unworkable. The court instead directed computation of terminal benefits (notice, house allowance, leave and service pay) and any wage deficits against the applicable minimum wage order, with a report to be adopted as the final order.

p. 3

Legal principles established

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  • A casual employee who works continuously beyond 24 hours and is paid monthly is converted by section 37(1) of the Employment Act into a term contract employee

Court orders

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  1. 1.A declaration that the claimants, having been employed consistently for more than 24 hours and paid monthly, ceased to be casual employees and became term contract employees within the meaning of section 37(1) of the Employment Act
  2. 2.Claimants' counsel jointly with counsel for the respondent, with the assistance of the Embu County Labour Officer, to verify and calculate the terminal benefits due to each claimant in accordance with the period worked prior to termination of service
  3. 3.Terminal benefits limited to one month salary in lieu of notice, house allowance at the rate of 1/3 of monthly salary, 21 days leave with pay per year where a claimant worked an aggregate of one year or more, and service pay at 15 days pay per year of service
  4. 4.Counsel for the parties with the assistance of the Embu County Labour Officer to identify the applicable wage order to be used in calculating the terminal benefits
  5. 5.Where the wage actually paid is lower than the minimum recommended wage, the difference to be worked out in respect of each claimant
  6. 6.Parties to return to court within 60 days of the ruling to produce a report for perusal and adoption as the court's final order

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 35(1)(c)
  • Employment Actsection 37(1)
  • Employment Actsection 37(3)
  • Employment Actsection 37(4)
  • Legal Notice No. 94 of 2004 (minimum wage order)paragraphs 5 and 19
Jurisdiction invoked
Employment Act, sections 2, 35(1)(c) and 37, in respect of a claim referred to the court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Francis Runji Karingi & 5 others v China Hebei Water Conservancy Engineering Bureau [2014] KEELRC 918 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/918/eng@2014-03-31

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