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ELRCPartially AllowedCause Number 436 of 2011· [2015] KEELRC 867 (KLR)

John Kyalo Mbondo v Dippoly Plastics Industries Limited [2015] KEELRC 867 (KLR)

Industrial Court of Kenya
19 June 2015
3,281 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that long-serving 'casual' workers become regular employees entitled to leave and service pay, even if dismissed for misconduct.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 30th November 2001 as a Moulder and later a Supervisor in the Production Section, claimed his employment was abruptly and unfairly terminated on 19th January 2011 after he questioned irregular salary deductions. He sought a declaration of unfair termination, notice pay, annual leave pay for 10 years, service pay, 12 months' compensation, a certificate of service, costs and interest. The Respondent contended the Claimant was a casual employee paid a daily rate of Kshs. 472, who misappropriated Kshs. 838 entrusted to him for colleagues Onsongo and Maccane (paying Maccane only Kshs. 50), and deserted employment from 2nd January 2011. The Court found the employer's records inconclusive and accepted the Claimant's evidence that employment began in November 2001. Applying clause 27 of the CBA and Section 37 of the Employment Act 2007, and following the Opwaka decision while distinguishing Kenya Engineering Union v. Rolmil, the Court held the Claimant ceased to be a casual employee and should have been treated as regular from at least 2006. However, the Court accepted the Respondent's account of the misappropriation, corroborated by Onsongo's consistent testimony, and held termination was valid and fair; the Claimant's desertion made a fair hearing impossible. Notice pay and compensation were rejected. Annual leave pay for 2006-2011 (Kshs. 49,560) and service pay for 10 years (Kshs. 84,960) were awarded, with a certificate of service; each party to bear own costs.

Key legal issues

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01

Status of the Claimant - casual or regular employee, and date of employment

Holding

The Claimant was employed in November 2001 and ceased to be a casual employee; he should have been treated as a regular employee from at least 2006

Reasoning

The employer failed to produce conclusive records showing employment commenced in 2003; the worksheet covering 2000-2011 suggested earlier employment. The Claimant's oral evidence of employment from 30th November 2001 was accepted. The nature of his work (Moulder, then Supervisor for over five years) and continuity of service meant he could not remain casual. CBA clause 27, adopting Section 37 of the Employment Act 2007, converted his contract, and the Court had discretion under Section 37(4) to declare him a regular employee.

p. 3
02

Whether termination was valid and fair

Holding

The contract was validly and fairly terminated; the Claimant deserted employment after misappropriating money entrusted to him for colleagues

Reasoning

The Court preferred the Respondent's account, corroborated by Onsongo's consistent sworn statement dated 5th January 2011, that the Claimant was entrusted with colleagues' money, paid only Kshs. 50 to Maccane and pocketed the rest. The Claimant's assertion of victimisation over salary deductions was unparticularised and pedestrian. His conduct betrayed trust and confidence, the cornerstones of employment. By disappearing and refusing to attend a disciplinary hearing, he made it impossible for the Respondent to accord him a fair hearing.

p. 5
03

Remedies for annual leave and service pay

Holding

The Claimant was granted annual leave pay for 2006-2011 (Kshs. 49,560) and service pay at 18 days' salary for each of 10 completed years (Kshs. 84,960), totaling Kshs. 134,610

Reasoning

The Respondent could not show the Claimant's annual leave records and wrongly presumed he was a casual employee not entitled to leave; at least from 2006 it was clear he was no longer casual. Having served 10 years, he was entitled under Section 18(4) of the Employment Act to all moneys and benefits due even on summary dismissal. With no pension plan or NSSF coverage, service pay at 18 days' salary per completed year was awarded.

p. 5

Legal principles established

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  • An employer must keep proper employment records and be able to point to the date of employment
  • A casual employee who works continuous working days aggregating not less than a month, or performs work expected to take three months or more, is deemed to be employed on monthly wages under CBA clause 27 and Section 37 of the Employment Act
  • An employee who abandons his post and disappears cannot complain of being denied a fair hearing
  • Even in cases of summary dismissal, an employee is entitled to all moneys, allowances and benefits due up to the date of termination, per Section 18(4) of the Employment Act

Court orders

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  1. 1.A declaration that the Claimant's contract was validly and fairly terminated
  2. 2.The Respondent shall, within 30 days of delivery of the decision, pay the Claimant a total sum of Kshs. 134,610 comprising annual leave pay and service pay
  3. 3.The Respondent to release to the Claimant his certificate of service forthwith
  4. 4.No order on the costs and interest

Authorities

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Legislation

  • Employment Act 2007Section 37
  • Employment Act 2007Section 37(4)
  • Employment Act 2007Sections 41, 43 and 45
  • Employment Act 2007Section 18(4)
  • Employment Act 2007Section 51
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)

Cases cited (2)

  • Wilfred Bukachi Opwaka v. Ready Consultancy Co Limited
    Industrial Court at Nairobi Cause Number 671 of 2012
  • Kenya Engineering Union v. Rolmil [K] Limited
    Industrial Court Nairobi Cause Number 843 [N]
Jurisdiction invoked
Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010; jurisdiction over unfair and unlawful termination disputes under the Employment Act 2007

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, "John Kyalo Mbondo v Dippoly Plastics Industries Limited [2015] KEELRC 867 (KLR)", Case Analysis (2015). Cause Number 436 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/867/eng@2015-06-19

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