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ELRCDismissedCause No. 315 of 2014· [2016] KEELRC 56 (KLR)

Livingstone Oundo v Polypipes Ltd (Steel Division) [2016] KEELRC 56 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
25 November 2016
MMM. Mbaru
2,521 words in judgment
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The bottom line

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Kenya's Employment Court ruled a worker engaged only a few days a month was a casual employee, so his unfair termination and benefits claim failed.

What this practically means

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Executive summary

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The Claimant sued the Respondent for unfair termination and terminal benefits, claiming he was employed from February 1998 at a daily wage of Kshs.457.00 (approximately Kshs.11,882.00 monthly) and terminated on 17th January 2013 without payment of dues. He sought notice pay of Kshs.11,882.00, accrued leave of Kshs.124,761.00, service pay of Kshs.89,115.00, plus compensation, costs and interest. The Respondent denied employing him continuously, contending he was engaged only as a casual at Kshs.424.00 per day depending on operational needs, and that the Respondent was incorporated in 2001/2002 making employment from 1998 impossible. The Respondent's witness, the Personnel Clerk, confirmed the Claimant attended work 3 to 4 days a week, was paid fortnightly through the bank, and that the business closed down in 2013. The court framed two issues: whether the Claimant was a casual or full-time employee, and whether the remedies sought were due. Applying section 2 and section 37 of the Employment Act, the court examined the Respondent's daily attendance logs and found the Claimant never worked more than 9 days in any month, with days staggered and non-continuous. It held the engagement was casual, that the Respondent lawfully engaged him on casual terms based on operational requirements, and that no unfair labour practice arose from the termination when there was no work due to the business closure. All remedies were refused: no notice pay (casual employment is terminable daily), no compensation under section 45 (termination justified), no annual leave (irregular work), and no service pay (no statutory deductions). The claim was dismissed with each party bearing its own costs. Judgment was delivered by M. Mbaru, J, on 25th November 2016 in Nairobi.

Key legal issues

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01

Whether the Claimant was a casual employee or a full-time employee

Holding

The Claimant was a casual employee; his work was staggered, never exceeding 9 days in any month, and he was paid fortnightly rather than at the end of each day, but the court held the engagement was casual based on operational requirements

Reasoning

The court defined casual employment under section 2 of the Employment Act as payment at the end of each day and engagement not longer than 24 hours. It examined the Respondent's daily attendance logs from 2011 to 2013, finding the Claimant worked at most 9 days per month, staggered and non-continuous. It concluded the work was not continuous for over 3 months, so section 37 did not convert the engagement into a full-time contract, and the Respondent could lawfully engage the Claimant on casual terms based on operational needs.

p. 4
02

Whether the remedies sought (notice pay, leave, service pay, compensation) were due

Holding

None of the remedies sought were available because the employment was casual and the termination lawful

Reasoning

Casual employment is terminable at the end of each day, so no notice pay was due. Since the termination was justified, no compensation under section 45 of the Employment Act applied. The Claimant, working only 3 to 4 days a week when work was available, could not claim annual leave, and since no statutory deductions were made on the casual wages, no service pay was due.

p. 5

Legal principles established

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  • The definitive features of a casual employee are daily engagement, payment at the end of each day, and engagement not longer than 24 hours at a time
  • Not every termination of employment results in a claim for unfair termination; the characteristics of each employment must be assessed on its own merits

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to bear own costs
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (inferred from court name; judgment cites the Employment Act, 2007 as the governing statute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Livingstone Oundo v Polypipes Ltd (Steel Division) [2016] KEELRC 56 (KLR)", Case Analysis (2016). Cause No. 315 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/56/eng@2016-11-25

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