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ELRCDismissedNot stated in the judgment as provided· [2015] KEELRC 1657 (KLR)

Baraza & 6 others v Mj Clarke Ltd (Cause 308 of 2014) [2015] KEELRC 1657 (KLR)

Employment and Labour Relations Court
13 November 2015
OMOnesmus Makau
1,165 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 dismissed dock workers' unfair dismissal claims because casual employees on daily wages can legally be let go without any notice.

What this practically means

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Executive summary

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Seven claimants sued their employer on 10.7.2014 alleging unfair termination of employment on 19.5.2014, seeking reinstatement or, alternatively, terminal dues plus compensation. They had served between 2009 and 2014 under short fixed term contracts of one to three months, punctuated by periods of casual daily engagement, and at termination were serving as casuals after their last contracts lapsed on 5.2.2014 and 10.3.2014. The respondent denied liability, asserting the claimants refused to sign a one-month contract effective 1.6.2014 and thus abandoned their jobs. The court framed three issues: the nature of the employment contract; desertion versus unfair dismissal; and reliefs. It found the claimants were seasonal employees under distinct fixed term contracts that lapsed automatically, interspersed with casual daily work during which they did not attend continuously, as shown by the attendance register and conceded by Cw1. On the second issue, the court accepted the unrebutted evidence that on 19.5.2014 the warehouse manager Mr Ahmed Twahir barred the claimants from working, so they did not desert. However, as casual employees engaged at daily wages, their contract was terminable at the close of any day without notice under Section 35(1)(a), and the termination was therefore not unlawful. The court declined to grant declarations or monetary awards and dismissed the suit with no order as to costs.

Key legal issues

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01

Nature of the claimants' employment

Holding

The claimants were seasonal employees engaged under short fixed term contracts punctuated by daily casual engagements, and were casual workers at the time of termination

Reasoning

Both Cw1 and Rw1 confirmed the contracts did not run consecutively and were separated by periods of casual daily work. The attendance register showed claimants did not work every day while casuals. Cw1 conceded the work was seasonal. The court inferred the contracts were voluntary and binding, and that fixed term contracts lapsed automatically on agreed dates.

p. 3
02

Desertion versus unfair termination

Holding

The claimants did not desert; they were turned away by the warehouse manager on 19.5.2014, but as casual employees their termination required no prior notice and was therefore lawful

Reasoning

The unrebuted evidence of Cw1 that the warehouse manager Mr Ahmed Twahir prevented them from entering work on 19.5.2014 was accepted, negating desertion. However, having found they were casual employees at the time, Section 35(1)(a) rendered the contract terminable by either party at the close of any day without notice, so no unfair termination arose.

p. 3

Legal principles established

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  • A contract paying daily wages is terminable by either party at the close of any day without notice (Section 35(1)(a) of the Employment Act)
  • Fixed term contracts that lapse by effluxion of time and are punctuated by casual engagements remain distinct contracts; the employee is seasonal, not continuously employed

Court orders

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  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Act (implied by Section 35(1)(a) quotation)Section 35(1)(a)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims (not expressly invoked in the judgment)

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, "Baraza & 6 others v Mj Clarke Ltd (Cause 308 of 2014) [2015] KEELRC 1657 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1657/eng@2015-11-13

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