Fredrick Juma Ogeda v Prime Steel Mills Limited [2016] KEELRC 24 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi

3 November 2016

MMM. Mbaru

892 words in judgment

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The bottom line

Kenya's Employment Court turned a daily-wage worker into a full-time employee by law and awarded him a full year's pay for unfair, unexplained termination.

What this practically means

Executive summary

The claimant, employed by the respondent from January 2007 as a togsman/machine operator on a daily wage of Kshs 542, reported to work on 11th January 2016 but was stopped at the gate and told there was no more work. No reasons were given, and attempts to secure terminal dues went unanswered. The respondent entered no appearance and filed no defence; the claim was heard undefended. The court accepted the claimant's uncontroverted evidence and, applying Section 37 of the Employment Act, held that his continued daily-wage employment converted him into a full-time employee, with all rights assessed per the applicable law in the absence of work records. Sections 43 and 45 rendered the termination unfair for want of reasons; Section 35 entitled him to notice or payment in lieu. The court awarded notice pay of Kshs 16,260 and unpaid leave of Kshs 102,438 as claimed, and maximum compensation of 12 months' pay (Kshs 195,120) for unfair termination. The overtime claim of Kshs 1,756,080 was declined because the claimant failed to demonstrate how the figure arose, and the public holiday claim was refused as a general award because it was conflated with overtime without clarity. Judgment was entered for the claimant with costs of the suit.

Key legal issues

Status of the claimant's employment

Holding

Continued daily-wage employment from 2007 to 2016 made the claimant a full-time employee under Section 37 of the Employment Act

Reasoning

The respondent entered no appearance or defence, so the claimant's uncontroverted evidence stood. Relying on Section 37, the court held that continued employment on a daily wage of Kshs 542 converted the claimant into a full-time employee, and that in the absence of work records all employment rights must be assessed with regard to the applicable law.

p. 2

Unfair termination

Holding

Termination without reasons or due process was unfair; claimant awarded 12 months' pay

Reasoning

Section 43 obliges an employer to give reasons for termination; where none exist, Section 45 renders the termination unfair. The claimant was stopped at the gate with no reason given, and attempts to obtain reasons and terminal dues went unanswered, justifying maximum compensation of 12 months' gross pay.

p. 2

Overtime and public holiday pay

Holding

Overtime claim declined for lack of particulars; general public holiday award refused as the two rights were conflated

Reasoning

The claimant sought Kshs 1,756,080 in overtime but could not demonstrate how the figure arose; the alleged 4 hours overtime in submissions was never led in evidence. Public holiday work is a distinct right from overtime and cannot be awarded as a general claim absent clarity on each head.

p. 2

Legal principles established

Under Section 37 of the Employment Act, continued employment on a daily wage converts the employee into a full-time employee with all attendant rights
Where an employer gives no reasons for termination, the termination is unfair and compensation is due under Sections 43 and 45 of the Employment Act
Every award of the court must have an evidential basis; unparticularised claims cannot be awarded even where unchallenged

Court orders

1.Compensation for unfair termination awarded at Kshs. 195,120.00 (12 months' pay)
2.Notice pay of Kshs. 16,260.00
3.Leave pay of Kshs. 102,438.00
4.Costs of the suit to the claimant

Authorities

Legislation

Employment ActSection 37
Employment ActSection 43
Employment ActSection 45
Employment ActSection 35

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act (employment cause); no specific constitutional provision cited

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Fredrick Juma Ogeda v Prime Steel Mills Limited [2016] KEELRC 24 (KLR)", Case Analysis (2016). Cause No. 425 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/24/eng@2016-11-03

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