Kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers [Kudheiha] v North Coast Beach Hotel [2015] KEELRC 1471 (KLR)
The bottom line
#Kenya's Industrial Court ruled hotel workers on repeated short contracts for over a year are permanent employees, entitling them to compensation for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Employment status of the Grievants under Clause 19 of the CBAs
Having served an aggregate of more than one year, the Grievants were entitled to be treated as regular employees on indeterminate contracts; the successive fixed term contracts were issued in breach of the CBA
Clause 19 of the CBAs across the three agreements regulated temporary/seasonal employment, limiting it to one year and prohibiting the employer from terminating a temporary employee after an aggregate of one year's service to avoid permanent engagement. The Grievants served uninterruptedly for four years. By the time fixed term contracts were issued on 1 June 2011, they had completed more than one year in aggregate. The 6-month and 3-month contracts were therefore issued to avoid permanent terms, contrary to the CBA, making them regular employees covered by the Employment Act unfair termination provisions.
Whether non-renewal of the fixed term contracts amounted to unfair termination
Yes. The Grievants were entitled to substantive justification and fair procedure under Sections 41, 43 and 45 of the Employment Act 2007; the Respondent offered none
Because the Grievants had become regular employees under the CBA, the expiry of the fixed term contracts did not extinguish their rights. The CBA terms conferring superior benefits superseded individual contract terms. The Respondent was bound to observe substantive justification and fair procedure under Sections 41, 43 and 45 of the Employment Act 2007. It offered no substantive justification and did not adhere to fair procedure, entitling the Grievants to compensation, which the Court assessed at 7 months' gross salary.
Claim for underpayment of salaries and acting allowance
Both claims rejected for want of proof
The pay slips availed did not support the amounts claimed as underpayments, and the recomputation in Closing Submissions was done without the Respondent's participation, contrary to the principle that submissions are not a forum for adducing additional evidence. The Claimant shifted position and muddled its case. On acting allowance, the pay slips showed consistent payment of acting allowance to Wanga, who failed to explain what further allowance beyond what was paid was claimed.
Terminal benefits claims
Allowed in part: 13 days' September 2013 salary, 2 months' notice pay, 65 days' annual leave, leave traveling allowance, shoe allowance and August 2013 service charge allowed; each computed under the relevant CBA rates
The Respondent did not contradict the claim for 13 days worked in September 2013. Clause 9(a) of the CBA entitled the Grievants to 2 months' notice. The Respondent did not show the Grievants took or sold their leave days, and Clause 12 granted 26 days' annual leave and leave traveling allowance. Clause 16 required provision of uniforms and footwear or compensation, and Clause 21 required payment of service charge, which was shown to have been paid before termination and should have been paid for August 2013.
Legal principles established
#- Where a CBA limits temporary/seasonal employment to one year, employees serving beyond an aggregate of one year must be treated as regular employees on indeterminate contracts, and successive short fixed term contracts issued to avoid permanent engagement breach the CBA
- Where terms and conditions of employment conflict, the terms conferring superior benefit to the employee are to be upheld
- Closing Submissions should not be used as a forum for adducing additional evidence
Court orders
#- 1.A declaration that termination of the Grievants' contracts of employment was unfair
- 2.The Respondent to pay each Grievant 7 months' gross salary in compensation for unfair termination, based on the last salary paid
- 3.The Respondent to pay terminal benefits comprising 13 days' gross salary for September 2013, 2 months' salary in notice pay, 65 days' salary worth of annual leave, leave traveling allowance, shoe allowance and service charge for August 2013, calculated as indicated in the Award
- 4.The Award to be satisfied within 30 days of delivery
- 5.The Respondent to release the Grievants' Certificates of Service forthwith
- 6.No order on the costs
- Jurisdiction invoked
- Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010; dispute over unfair and unlawful termination referred under the Industrial Court Act/Employment Act framework
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Education Institutions and Hospital Workers [Kudheiha] v North Coast Beach Hotel [2015] KEELRC 1471 (KLR)", Case Analysis (2015). Cause Number 109 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1471/eng@2015-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.