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ELRCDismissedNot stated (amended memorandum of claim filed 9th June 2014)· [2016] KEELRC 579 (KLR)

Silus Ochieng Osano v Heavy Engineering Limited [2016] KEELRC 579 (KLR)

Employment and Labour Relations Court
7 October 2016
MNMathews Nderi Nduma
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a casual worker laid off at a project's end was not unfairly dismissed and could only recover conciliation-agreed dues.

What this practically means

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Executive summary

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The claimant sued on an amended memorandum of claim seeking maximum compensation for wrongful dismissal and terminal benefits from Heavy Engineering Limited, alleging employment as a branch manager from 1st August 2006 at a daily rate that should have been Kshs.466 rather than Kshs.290, plus house, leave, transport and service pay entitlements under a collective bargaining agreement. He alleged termination without notice on 17th September 2007 after he declined to give a false police statement about a workplace injury. The respondent denied continuous employment, contending the claimant was a casual engaged on 2nd August 2007 whose services ended with redundancy upon completion of the Sondu Miriu project, and that following conciliation involving the Labour office Kisumu, the Kenya Engineering & Allied Workers Union and the Federation of Kenya Employers, his dues of approximately Kshs.15,200 were deposited at the Labour office for collection. The court found as a fact that the claimant was a casual who worked intermittently as shown by the master roll, that he was laid off upon completion of the project rather than wrongfully dismissed, and that he failed to prove the overtime, underpayment and allowance claims. The court held that CBA benefits attach to unionisable employees, not necessarily union members, but the claimant failed to show casuals were unionisable under the CBA. The court upheld the conciliation agreement, declared the claimant entitled to the Kshs.15,200 deposited at Kisumu Labour office, dismissed the suit in its entirety and made no order as to costs.

Key legal issues

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01

Continuity of employment and nature of engagement

Holding

The claimant was a casual who worked intermittently, not continuously as alleged

Reasoning

The court accepted RW1's testimony and the master roll showing intermittent periods of work rather than continuous employment from 1st August 2006. The conciliation process involving the Labour office, the union and the Federation of Kenya Employers confirmed the casual status of the workers and the dues payable.

p. 3
02

Wrongful/unfair termination vs lay-off

Holding

The claimant was laid off on completion of the Sondu Miriu project, not wrongfully dismissed

Reasoning

The respondent completed the project and the claimant and other casuals became redundant. The court held this lay-off accorded with the law applicable to the construction industry, defeating the compensation claim.

p. 3
03

Entitlement to CBA benefits by a casual worker

Holding

CBA benefits restricted to unionisable employees; casuals excluded

Reasoning

The court held that while union membership is not a prerequisite for CBA benefits, the claimant had to prove casual workers were unionisable under the recognition agreement and CBA. He failed to do so, so the house, leave and transport allowance claims failed.

p. 4
04

Effect of conciliation agreement

Holding

The conciliation agreement upheld; claimant entitled to the deposited Kshs.15,200

Reasoning

Following conciliation by the Labour office Kisumu involving the respondent, the union and the Federation of Kenya Employers, dues for casual workers were agreed and deposited. The court upheld that agreement as the measure of the claimant's entitlement.

p. 4

Legal principles established

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  • An employee need not be a union member to benefit from a CBA; it suffices that the employee is a unionisable employee within the recognition agreement and CBA.

Court orders

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  1. 1.The court upholds the conciliation agreement and finds the claimant entitled to Kshs.15,200 deposited at the Kisumu Labour office for collection
  2. 2.The suit is dismissed in its entirety
  3. 3.No order as to costs
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment and Labour Relations Court Act); not expressly cited in the judgment

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, "Silus Ochieng Osano v Heavy Engineering Limited [2016] KEELRC 579 (KLR)", Case Analysis (2016). Not stated (amended memorandum of claim filed 9th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/579/eng@2016-10-07

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