James Mutembei v Landmark Holdings Limited [2015] KEELRC 566 (KLR)
The bottom line
#A Kenyan court ruled that a worker called an 'apprentice' without written approval was actually an employee, awarding him Kshs. 184,044 for underpayment and unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Status of the claimant - apprentice or employee from 2004
The claimant was not an apprentice within the meaning of section 6 of the Industrial Training Act since the respondent never obtained the written permission of the Director General; he was a general worker/employee
Section 6 of the Industrial Training Act prohibits employing an apprentice without prior written permission of the Director General. The respondent produced no such permission. Skills training promised to the claimant may have been a benefit of his work but did not confer apprenticeship status. He was therefore an employee from 2004.
Underpayment and statutory obligations (leave, housing/allowance)
The claimant was underpaid relative to the General Wages Order and denied leave; being a continuous relationship, he was entitled to benefits of a regular employee
The claimant's earnings fell below the General Wages Order throughout the engagement, totaling Kshs.61,942.92 in underpayments. He was not allowed leave. Because the relationship was continuous and long, he could not be a casual employee and was entitled to leave, overtime and other benefits of a regular employee.
Limitation for the underpayment claim
The underpayment claim was within time as it was filed within 12 months of cessation of the underpayments
Underpayment is a continuing injury which must be brought within 12 months of cessation under section 90 of the Employment Act. Employment ended in September 2012 and the suit was filed in December 2012, hence within the statutory period.
Fairness of the termination
The termination was unfair; the respondent failed to prove the alleged absconding or to give the claimant an opportunity to show cause
The respondent alleged the claimant absconded duty but produced no evidence of any attempt to contact him to show cause, nor circumstances indicating he was not returning to work. The Court therefore assumed the services were terminated as the claimant alleged and awarded compensation.
Legal principles established
#- No person may employ an apprentice without first obtaining the written permission of the Director General under section 6 of the Industrial Training Act; without such permission, the purported apprentice is in law not an apprentice
- Underpayment is a continuing injury which must be brought within 12 months of cessation, per section 90 of the Employment Act
- An employee engaged continuously over a long period ceases to be a casual employee and may only be terminated in accordance with the Employment Act as a regular employee
- Where an employer alleges absconding but produces no evidence of an attempt to contact the employee to show cause, the court may assume the employee's services were terminated as alleged
Court orders
#- 1.Award to the claimant of Kshs.184,044.52 comprising one month's pay in lieu of notice (Kshs.8,579.80), underpayments from 2004-2012 (Kshs.61,942.92), leave (Kshs.39,543.00), service pay at 15 days' salary for each complete year from 2004 to 2010 (Kshs.22,500.00) and six months' salary for unfair termination (Kshs.51,478.80)
- 2.The respondent shall issue the claimant with a certificate of service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Industrial Training Act (specific enabling article not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mutembei v Landmark Holdings Limited [2015] KEELRC 566 (KLR)", Case Analysis (2015). Cause No 2564 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/566/eng@2015-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.