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ELRCPartially AllowedCause No. 2283 of 2012· [2016] KEELRC 62 (KLR)

Alex Kago v Hebattula Brothers Ltd [2016] KEELRC 62 (KLR)

Employment and Labour Relations Court of Kenya
14 November 2016
1,910 words in judgment
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The bottom line

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A Kenyan court converted a long-serving 'casual labourer' into a full-time employee and awarded him over Kshs. 400,000 after an unfair, undocumented dismissal.

What this practically means

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Executive summary

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The Claimant, employed from March 2004 as a Storekeeper in the Respondent's automobile glass division, was terminated on 23rd August 2012 without notice, reason or a hearing, and paid Kshs.15,000.00 which he contended was far below his terminal dues. He sought notice pay, service pay, accrued leave, salary arrears, pay for 98 days and 4 days worked, and 12 months' compensation for unfair termination. The Respondent denied employing him in 2004, asserting he was an on-and-off casual labourer dismissed for theft, and that the Kshs.15,000.00 was full and final settlement. The Respondent called no witness. The Court held that under section 37 of the Employment Act, an employee in continuous service beyond the statutory thresholds converts to a monthly-paid full-time employee by operation of law, and that under sections 10(6) and (7) and 20 of the Employment Act the burden lay on the employer to produce work records, which it failed to do. The theft allegation was an unsupported general averment. The termination contravened sections 35, 41, 43 and 45 of the Employment Act and was an unfair labour practice. The Court awarded notice pay of Kshs.16,510, leave of Kshs.120,015, service pay, salary arrears of Kshs.3,510 and 12 months' compensation of Kshs.198,120, plus a Certificate of Service and costs. The claims for 98 days' pay and 4 days' pay were declined for lack of evidence and clarity. Judgment was delivered at Nairobi on 14th November 2016.

Key legal issues

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01

Status of the Claimant's employment

Holding

The Claimant, having served continuously from March 2004 to August 2012, converted by operation of law from casual labourer to full-time employee entitled to all Employment Act rights

Reasoning

Section 37 of the Employment Act deems a casual employee who works for a continuous period equivalent to at least one month, or performs work not reasonably expected to be completed within three months, to be employed on monthly terms. The Claimant testified to nine years of continuous service; the Respondent produced no records to controvert this, so the benefit of the mandatory provisions went to the employee.

p. 3
02

Fairness of the termination

Holding

The termination was unfair: no notice, no valid reason and no hearing were given, and the theft allegation was a bare averment unsupported by evidence

Reasoning

Sections 35, 41 and 43 of the Employment Act entitle an employee to notice, a hearing and reasons before termination, even in cases warranting summary dismissal. The Respondent alleged theft but called no witness and produced no evidence of misconduct. The termination therefore lacked basis and justification and constituted an unfair labour practice under section 45, attracting compensation.

p. 3
03

Burden of proof and employer's duty to produce records

Holding

The employer bears the duty to submit all work records; failure to do so entitles the employee's claim to be believed

Reasoning

The Respondent relied on section 107 of the Evidence Act, but section 20 of the Employment and Labour Relations Court Act frees the Court from strict evidentiary technicalities. Section 10(6) and (7) of the Employment Act require the employer to keep written particulars for five years after termination and place the burden of proving or disproving alleged terms on the employer who fails to produce them. The Respondent filed defence without work records.

p. 3
04

Service pay entitlement

Holding

Service pay is due where the employer produces no evidence of statutory deductions or compliance with section 35(5) and (6) of the Employment Act

Reasoning

The Claimant served for eight full years from March 2004 to August 2012. With no record of statutory deductions or remittance to the relevant bodies, the mandatory provisions of section 35(5) and (6) were not complied with, and service pay at 15 days' pay per year on a daily wage of Kshs.635.00 was awarded.

p. 4

Legal principles established

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  • An employer who fails to produce written contracts or work records bears the burden of proving or disproving an alleged term of employment
  • A casual employee engaged continuously for a period equivalent to not less than one month, or on work not reasonably expected to end within three months, converts to a monthly-paid employee by operation of law
  • Even where misconduct warrants summary dismissal, notice, reasons and a hearing are required, and the employer bears the burden of demonstrating exceptional circumstances justifying summary action

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for compensation for unfair termination at Kshs.198,120.00
  2. 2.Notice pay at Kshs.16,510.00
  3. 3.Leave due at Kshs.120,015.00
  4. 4.Service pay at Kshs.72,200.00
  5. 5.Salary arrears at Kshs.3,510.00
  6. 6.The Respondent shall issue the Claimant with a Certificate of Service forthwith
  7. 7.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Actsection 9
  • Employment Actsection 41
  • Employment Actsection 28
  • Employment Actsection 43
  • Employment Actsection 20(1) and (7)
  • Employment Actsection 10(6) and (7)
  • Employment Actsection 37(1)
  • Employment Actsection 35(1)(c), (5) and (6)
  • Employment Actsection 44 and 41(2)
  • Employment Actsection 45
  • Evidence Actsection 107
  • Employment and Labour Relations Court Actsection 20
Jurisdiction invoked
Employment and Labour Relations Court Act, section 20 (employment and labour relations matters)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Alex Kago v Hebattula Brothers Ltd [2016] KEELRC 62 (KLR)", Case Analysis (2016). Cause No. 2283 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/62/eng@2016-11-14

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