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ELRCPartially Allowed· [2016] KEELRC 234 (KLR)

Dougls Mulanya Alakonya v Africa Marine General Engineering Limited [2016] KEELRC 234 (KLR)

Employment and Labour Relations Court
18 November 2016
OMO.N. Makau
974 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 an unfair termination claim because the worker was a casual employee, but ordered the employer to issue a certificate of service.

What this practically means

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Executive summary

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The claimant was employed by the respondent as a Grinder man from 6 January 2014 at Kshs.635 per day, paid weekly in arrears. On 22 July 2014 he sustained injuries in an industrial accident and was admitted to Aga Khan Hospital. He alleged that on 26 July 2014 his services were terminated for unknown reasons and without a fair hearing, and sought Kshs.274,320 comprising one month's salary in lieu of notice, unpaid house allowance, unpaid sick off days, a certificate of service, and twelve months' salary as compensation for unfair termination. The respondent admitted the engagement but averred it was casual because her business was seasonal, that the daily wage was inclusive of house allowance, and that she did not terminate him - the ship she was contracted to repair was completed and undocked. The suit was disposed of by written submissions on the pleadings, witness statements and documents. The court found the employment records proved the claimant served on casual basis, working less than 20 days per month over 7 months, so the fairness requirements of sections 40, 41 and 45 of the Employment Act did not apply and his service was not continuous enough for conversion under section 37. Under section 47(5) the burden of proving unfair termination lay on the employee, and it was not discharged. Notice pay and compensation were declined; the house allowance claim failed as the wage was inclusive of it, confirmed by the General Wage Order; the sick off claim lacked particulars. The certificate of service claim was allowed under section 51. The suit was otherwise dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the claimant's employment was casual and outside sections 40, 41 and 45 of the Employment Act

Holding

The employment records proved the claimant served on casual basis, working less than 20 days per month, so substantive and procedural fairness requirements did not apply and his employment was not continuous enough for conversion under section 37.

Reasoning

The court examined the employment records produced by the employer, which showed the claimant worked less than 20 days each month over 7 months. On a balance of probability, this established casual, non-continuous engagement. The protections of sections 40, 41 and 45 therefore did not apply, and the engagement could not convert to regular terms under section 37.

p. 2
02

Whether the claimant proved unfair termination

Holding

The claimant failed to discharge the burden of proving unfair termination under section 47(5) of the Employment Act.

Reasoning

Since the claimant was a casual employee, the requirements of valid reasons and fair procedure were inapplicable. Under section 47(5), the burden of proving unfair termination rests on the employee. The claimant did not prove on a balance of probability that he was unfairly terminated, so notice pay and compensation fell away.

p. 2
03

Entitlement to certificate of service

Holding

The claim for a certificate of service was granted as a statutory right under section 51 of the Employment Act.

Reasoning

Even though the unfair termination claim failed, the certificate of service is a statutory entitlement under section 51 of the Employment Act independent of the fairness of termination, and was therefore awarded.

p. 2

Legal principles established

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  • Termination of employment is unfair if the employer fails to prove valid and fair reasons and a fair procedure.
  • The onus of proving unfair termination of employment lies on the employee under section 47(5) of the Employment Act.
  • A certificate of service is a right guaranteed under section 51 of the Employment Act.

Court orders

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  1. 1.Suit dismissed save for the claim for a Certificate of Service which is allowed
  2. 2.Each party to bear his or her own costs

Authorities

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Legislation

  • Employment Actsection 37
  • Employment Actsections 40, 41 and 45
  • Employment Actsection 47(5)
  • Employment Actsection 51
  • Labour Institutions ActGeneral Wage Order published thereunder
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; Labour Institutions Act)

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, "Dougls Mulanya Alakonya v Africa Marine General Engineering Limited [2016] KEELRC 234 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/234/eng@2016-11-18

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