Francis N. Bwire & 12 others v Krystalline Salt Limited [2014] KEELRC 1135 (KLR)
The bottom line
#Kenya's Employment Court ruled that workers paid directly and controlled by a company are its employees, even if engaged through gang leaders, and their termination was unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether Claimants were employees of Respondent or subcontractors
The Claimants were employees of the Respondent for purposes of the law.
Applying the organizational/integration and mixed factor tests from Cassidy and Ready Mixed Concrete, and its own reasoning in Alfajiri Villas, the Court found the Claimants worked at hours set by the Respondent, were paid directly by it, and were under its direct control, negating independent contractor status despite the gang leader arrangement.
Whether the Claimants were casuals
They were not casuals; their contracts were deemed converted into term contracts with monthly wages.
The Respondent kept no records, the work was not of a nature completable within three months, and the employment was continuous. Sections 9(1) and 37 of the Employment Act, 2007 operate to convert such arrangements into term contracts.
Whether the Claimants were terminated unfairly
Termination was unfair.
Having found an employment relationship, the Respondent was obliged to follow a fair procedure and prove valid and fair reasons. It followed no procedure and proved no reasons; having denied the employment relationship, it mounted no challenge to the unfair termination allegations.
Appropriate relief
Notice pay and leave pay calculated on the statutory minimum wage for general labourers; service pay at 15 days per year of service; claim for public holidays and weekends declined for lack of evidence.
Since exact wages were estimates, the Court used the prescribed minimum monthly wage under Legal Notice No. 71 of 2012 (Kshs 8,579 plus 15% house allowance = Kshs 9,865). Service pay used the formula of basic salary plus house allowance divided by 26 multiplied by service pay days. The limitation objection fell away.
Legal principles established
#- Where an employer keeps no records, employees engaged on terms beyond casual employment have their contracts deemed converted into term contracts by sections 9(1) and 37 of the Employment Act, 2007
- Control by the employer over hours of work and direct payment of remuneration are decisive indicators of an employment relationship notwithstanding intermediate gang leaders
- An employer must follow a fair procedure under section 41 or 45(2)(c) of the Employment Act and prove valid and fair reasons for termination under sections 43, 45 and 47
Court orders
#- 1.Respondent to pay each Grievant one month pay in lieu of notice (Kshs 9,865/-)
- 2.Respondent to pay each Grievant one month pay in lieu of leave (Kshs 9,865/-)
- 3.Respondent to pay service pay to each of the 13 Claimants as itemised, ranging from Kshs 34,110/- (13th Claimant) to Kshs 102,330/- (1st to 3rd Claimants)
- 4.Claimants awarded costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- John Mutisya & 2 others v Rapid Kate Services Limited [2016] KEELRC 92 (KLR)[2016] KEELRC 92 (KLR)9 Dec 2016
- Gilbert Sule Otieno v Seventh Day Adventist Church (East Africa) Ltd (sued on behalf of S.D.A. Church, Kiamunyi East) [2014] KEELRC 39 (KLR)[2014] KEELRC 39 (KLR)18 Dec 2014applied
Cite this brief
#Cite this brief
Caselaw, "Francis N. Bwire & 12 others v Krystalline Salt Limited [2014] KEELRC 1135 (KLR)", Case Analysis (2014). Cause No 81 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1135/eng@2014-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.