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ELRCDismissedCause Number 176 of 2015· [2016] KEELRC 535 (KLR)

Garama Karisa Masha v Krystalline Salt Limited [2016] KEELRC 535 (KLR)

Employment and Labour Relations Court at Mombasa
5 September 2016
JRJames Rika
1,627 words in judgment
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The bottom line

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A Kenyan court ruled a salt loader paid per tonne was a piece-rate worker, not an employee, so his unfair dismissal claim failed.

What this practically means

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Executive summary

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The Claimant, employed from April 1998 as a Loader for Krystalline Salt Limited, alleged that in mid-December 2013 the Respondent's supervisor abruptly informed him he was no longer needed. He claimed he was a casual employee earning Kshs. 500 per day who, after 15 years and 9 months of continuous service, had converted into regular employment under Section 37 of the Employment Act 2007. He sought notice pay, accrued leave pay, service pay, 12 months' compensation for unfair termination, punitive damages, a certificate of service, costs and interest. The Respondent contended the Claimant was a piece-rate worker paid Kshs. 26 per tonne of salt loaded or off-loaded, engaged through a Group Leader only when work was available, and that he abandoned his duties when the Respondent engaged additional Loaders, never returning. The Cause was determined on pleadings, documents and submissions. The court found the record established piece work under Section 2 of the Employment Act: the Claimant was paid per tonne, not a time-based wage. It held that piece work is legally permissible, but employers adopting it are not exempt from fair labour practices and minimum employment standards. The Claimant failed to prove he was a casual employee earning Kshs. 500 per day or a regular employee, and there was no evidence the Respondent terminated his contract. The court rejected the Claim with no order on costs.

Key legal issues

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01

Status of the Claimant - piece worker versus casual/regular employee under Section 37 of the Employment Act 2007

Holding

The Claimant was a Piece Worker, not a casual or regular employee, because his pay was determined by tonnes of salt loaded rather than time worked

Reasoning

The court applied the statutory definition of piece work in Section 2 of the Employment Act, finding the Claimant was paid a fixed rate per tonne of salt loaded or off-loaded, not an hourly, daily, weekly or monthly rate. The Respondent's payment records and the Witness Statement of Group Leader Thomas Karisa Kadenge corroborated the piece-rate arrangement. The Claimant failed to substantiate his claim of a Kshs. 500 daily wage.

p. 3
02

Whether the contract was terminated by the Respondent

Holding

No evidence showed the Respondent terminated the contract; the Claimant's group boycotted work when additional loaders were engaged and the Claimant never returned

Reasoning

The Respondent's evidence through the Group Leader was that additional piece workers were engaged due to increased workload; the Claimant's group boycotted work, others returned and resumed piece work, but the Claimant stayed away. The court found no evidence, even assuming regular employment, that the Respondent terminated the contract.

p. 4

Legal principles established

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  • Employers who adopt piece work are not exempt from fair labour practices and minimum employment standards under the Constitution and relevant Acts
  • Piece work, defined by the Employment Act as work whose pay is determined by the amount of work performed irrespective of time, is a legally permissible mode of engagement
  • A claimant who cannot show casual or regular employment on a time-based wage cannot claim conversion to regular employment under Section 37 of the Employment Act

Court orders

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  1. 1.The Claim is rejected with no order on the costs

Authorities

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Legislation

  • Employment Act 2007Section 2 (definition of piece work)
  • Employment Act 2007Section 37
  • Employment Act 2007Sections 28, 35, 36, 41, 43, 45, 49, 51
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
  • Constitution of Kenya
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007; award under Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Garama Karisa Masha v Krystalline Salt Limited [2016] KEELRC 535 (KLR)", Case Analysis (2016). Cause Number 176 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/535/eng@2016-09-05

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