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ELRCPartially AllowedCause No. 56 of 2016· [2016] KEELRC 349 (KLR)

Aeneriko Simon Wekesa v County Government of Bungoma [2016] KEELRC 349 (KLR)

Employment & Labour Relations Court of Kenya
27 October 2016
MOMaureen Onyango
1,878 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 ruled that long-serving 'casual' workers are legally permanent employees and Bungoma County must pay KSh 556,200 for an unfair redundancy.

What this practically means

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Executive summary

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The Claimant, Aeneriko Simon Wekesa, sued the County Government of Bungoma alleging that his employment as a tax collector at Kamukuywa market, at a monthly salary of Shs. 18,000, was unfairly terminated and/or he was unprocedurally declared redundant on 2nd February 2015 by a memo headed 'UNPAID CASUAL REVENUE COLLECTORS'. He sought reinstatement, pay in lieu of notice, salary arrears, leave pay, house allowance arrears, 12 months' compensation and gratuity, totalling Shs. 907,761.54. The Respondent admitted it took over staff from the defunct County Council of Bungoma, conceded that the memo was issued to address unpaid casual revenue collectors, but alternatively pleaded that the Claimant was a ghost worker never employed by it. It filed its response, documents and submissions only after the Claimant had closed his case, and called no witness. The court found the Respondent's admission and its failure to produce records under section 10(6) and (7) of the Employment Act established the employment relationship. Holding that the Claimant's long continuous service converted him from a casual to a monthly employee under section 37, and that the reorganisation-based termination was a redundancy effected without compliance with the conditions in section 40, the court found the termination unlawful and unfair and awarded maximum compensation of 12 months' salary. The court awarded Shs. 556,200: pay in lieu of notice (Shs. 18,000), salary arrears (Shs. 234,000), annual leave recalculated at Shs. 88,200 and compensation (Shs. 216,000), with interest at court rates. The claims for house allowance and gratuity were dismissed; reinstatement was not granted.

Key legal issues

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01

Existence of an employment relationship

Holding

The Respondent admitted the Claimant was one of its unpaid casual revenue collectors, and having failed to produce records under section 10(6) and (7), the Claimant's evidence stood uncontroverted

Reasoning

The Respondent's own memo of 2nd February 2015 titled 'UNPAID CASUAL REVENUE COLLECTORS' admitted the Claimant was among unpaid revenue collectors. The work attendance registers produced did not identify who kept them or the market where the Claimant worked. Under section 10(6) and (7) the burden was on the employer, which failed to discharge it.

p. 3
02

Nature of the termination - redundancy under section 40

Holding

The termination was a redundancy but non-compliant with section 40, hence unlawful and unfair

Reasoning

The Respondent conceded the Claimant's services were discontinued on grounds of reorganisation and rationalisation, amounting to redundancy. No notice to the labour officer, no personal written notice, no severance pay, and none of the section 40 conditions were complied with. The long casualisation of the employment justified maximum compensation of 12 months' salary under section 49(4).

p. 4
03

Conversion of casual employment to monthly employment

Holding

Continuous work over several years converted the Claimant from casual to monthly paid employee entitled to leave, rest days and other benefits

Reasoning

Section 37 of the Employment Act provides that an employee engaged as a casual who works continuously for a period exceeding prescribed limits becomes an employee on monthly terms. The Claimant had worked for several years (claims dating back to 2008), and was thus entitled to leave pay and related benefits of a monthly employee.

p. 3

Legal principles established

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  • An employee engaged as a casual but working continuously for a prolonged period becomes a monthly paid employee entitled to the benefits of section 37 of the Employment Act
  • If an employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of employment falls on the employer
  • A redundancy effected without compliance with the conditions in section 40 of the Employment Act is an unlawful and unfair termination

Court orders

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  1. 1.Pay in lieu of notice of Shs. 18,000
  2. 2.Arrears of salary of Shs. 234,000
  3. 3.Annual leave of Shs. 88,200
  4. 4.Compensation of 12 months' salary of Shs. 216,000
  5. 5.Total decretal sum of Shs. 556,200
  6. 6.The decretal sum shall attract interest at court rates from date of payment

Authorities

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Legislation

  • Employment ActSection 10(6) and (7)
  • Employment ActSection 37
  • Employment ActSection 40(1)
  • Employment ActSections 41 and 43
  • Employment ActSection 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act over a claim for unfair termination and redundancy (Art. 162(2) Constitution not expressly cited in the judgment; claim framed under the Employment 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, "Aeneriko Simon Wekesa v County Government of Bungoma [2016] KEELRC 349 (KLR)", Case Analysis (2016). Cause No. 56 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/349/eng@2016-10-27

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