Collins N. Oneko v G4s Security Services (Kenya) Limited [2016] KEELRC 216 (KLR)
The bottom line
#Kenya's Employment Court ruled that a 'consultant' who works fixed hours under an employer's control is actually an employee entitled to protection from unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the consultancy contract created an employment relationship
Yes - the contract created an employment relationship despite its description as a consultancy agreement
The court applied the traditional common law tests of control and integration, noting they are no longer conclusive, and examined the total relationship. Clause 4 of the contract required the Claimant to avail himself each working day at the Respondent's head office during fixed working hours of 08.15 to 17.15, meaning he was under total control and could not take other assignments, and his work was fully integrated into the Respondent's core business.
Whether Section 45(3) of the Employment Act barred the Claimant's claim for unfair termination given his short service
The court did not apply Section 45(3) to bar the claim, following the Momanyi decision on unconstitutionality
The Respondent argued that under Section 45(3) only an employee with more than 13 months' continuous service may complain of unfair termination. The court was persuaded by Samuel G. Momanyi v Attorney General that a statutory provision barring an employee from constitutional rights is unconstitutional, and therefore proceeded to determine the fairness of the termination despite the Claimant's service of less than four months.
Whether the termination was substantively and procedurally fair
Termination was substantively fair (valid reason existed) but procedurally unfair for breach of Section 41
The Claimant admitted absence from duty on 25th and 26th October 2010 without communication, giving the Respondent a valid reason under Section 43. However, no evidence showed that the mandatory disciplinary procedure under Section 41 was followed, and that failure rendered the termination procedurally unfair, entitling the Claimant to compensation.
Legal principles established
#- In determining whether an employment relationship exists, the court must examine the total relationship between the parties, including the intention of the parties as evidenced in the documents and in the fundamental behaviour of the parties, not merely the label given to the engagement
- A consultant placed under the total control of an employer, assigned fixed working hours and whose work is integrated into the employer's core business is an employee notwithstanding the contractual label of 'consultant'
- Failure to subject an employee to the mandatory disciplinary procedure under Section 41 of the Employment Act renders a termination procedurally unfair even where a valid reason exists
- A statutory provision barring an employee from enjoying rights guaranteed under the Constitution is unconstitutional
Court orders
#- 1.Judgment entered in favour of the Claimant for one month's salary in compensation for unfair termination of Kshs. 500,000
- 2.Salary for 15 days worked in October 2010 of Kshs. 250,000
- 3.Total judgment amount of Kshs. 750,000
- 4.Judgment amount to attract interest at court rates from the date of judgment until payment in full
- 5.Claimant awarded costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 - contested on the ground that no employment relationship existed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Collins N. Oneko v G4s Security Services (Kenya) Limited [2016] KEELRC 216 (KLR)", Case Analysis (2016). Memorandum of Claim filed 29th August 2011 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/216/eng@2016-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.