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ELRCPartially AllowedCause No. 1261 of 2013· [2015] KEELRC 451 (KLR)

Cavine Ouma Were v Pioneer Plumbers Limited [2015] KEELRC 451 (KLR)

Employment and Labour Relations Court of Kenya
10 August 2015
2,909 words in judgment
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The bottom line

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A Kenyan court dismissed a worker's unfair termination claim because he vanished from work for over five months, and ordered him to refund money paid through the labour office.

What this practically means

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Executive summary

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The claimant sued Pioneer Plumbers Limited alleging unfair, wrongful and unlawful termination of his employment and non-payment of terminal dues, seeking notice pay, leave, gratuity, underpayments, compensation, interest and costs. He testified that he was employed as a plumber from August 2008 until June 2011 and was denied work after returning from burial leave for his mother and sister. The respondent admitted employing him only as a casual from 25th September 2010 to 11th March 2011, asserting he absconded duty, and filed a counter-claim for refund of Kshs.25,700.00 paid through the labour office under threat of sanctions. The court found the employment dates settled at 25th September 2010 to 11th March 2011 based on the respondent's records and labour office correspondence, rejecting the claimant's inability to recall his own dates. The claimant was found to be a general labourer, not a plumber, whose casual employment converted to full-time after three months by operation of section 37 of the Employment Act. His evidence on the termination was hazy and he failed to account for over five months' absence, so no notice pay or compensation was due; he had absconded. Gratuity and leave were also refused. Underpayment at the casual general labourer rate of Kshs.416.00 daily was awarded at Kshs.5,400.00. The counter-claim succeeded, with the refund of Kshs.25,700.00 offset against the underpayment award. The claim was dismissed save for the underpayment, and each party was ordered to bear their own costs.

Key legal issues

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01

Duration of employment

Holding

Employment ran from 25th September 2010 to 11th March 2011 as per the respondent's records and labour office correspondence

Reasoning

The claimant could not recall the dates of his employment. The labour officer had asked the respondent to produce work records, which the respondent did. The claimant's assertion that the labour officer's letter confirmed his employment dates was rejected; the burden was on him to prove his own dates. The court therefore adopted the respondent's records as establishing the employment period.

p. 3
02

Status of employment

Holding

The claimant commenced as a casual general labourer and his employment converted to full-time by operation of section 37 of the Employment Act after three months

Reasoning

Although the claimant described himself as a plumber, the court found his duties were digging trenches, which does not equate to plumbing requiring skill. The duty to prove the plumber position was on the claimant and he failed. The court took his sworn testimony that he was a general labourer working as a plumber and applied section 37 of the Employment Act to convert the casual engagement into full-time employment after three months.

p. 4
03

Unfair termination

Holding

No unfair termination was established; the claimant absconded duty and failed to account for the period March to September 2011

Reasoning

The claimant's evidence on when he sought and obtained permission for burial and extension was hazy. He was granted a week off plus a four-day extension, which could not fill a gap of over five months. Having failed to account for the period and not having notified the respondent, he could not claim notice pay or compensation for unfair termination.

p. 4
04

Counter-claim

Holding

The Kshs.25,700.00 paid by the respondent through the labour office must be refunded as it was not justified

Reasoning

The claimant did not show how the amount claimed under the labour office process was computed. The payment lacked evidential basis in terminal dues and was made to avoid sanctions in a flawed process. The court ordered its refund, offset by the Kshs.5,400.00 underpayment awarded to the claimant.

p. 5

Legal principles established

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  • Casual employment converts to full-time employment by operation of law where an employee remains on casual terms for over three consecutive months and the work is of a continuing nature
  • It is not for the labour officer to confirm dates of employment; the duty is on the claimant to state and prove the dates where they are contested

Court orders

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  1. 1.Claim dismissed save that the claimant is held entitled to Kshs.5,400.00 in underpayment
  2. 2.Judgment entered for the respondent on the counter-claim for the refund of Kshs.25,700.00
  3. 3.Amount due to the respondent to be less the stated underpayment of Kshs.5,400.00
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 10
  • Employment Actsection 37
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, Employment and Labour Relations Court Act)

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, "Cavine Ouma Were v Pioneer Plumbers Limited [2015] KEELRC 451 (KLR)", Case Analysis (2015). Cause No. 1261 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/451/eng@2015-08-10

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