Evans Katiezo Aligulah v Eldomatt Wholesale And Supermarket Ltd [2016] KEELRC 845 (KLR)
The bottom line
#A Kenyan court ruled a supermarket unfairly fired a worker without notice or hearing, awarding him full dues, costs and interest.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of the Claimant's employment was unfair
The termination was unfair as the Claimant was dismissed verbally without a hearing or notice, and the alleged suspension letter was neither proved to have been received nor a valid suspension
The Respondent relied on a handwritten letter dated 22nd June 2013 alleging suspension for gross misconduct, but led no evidence that the Claimant received it. Even if delivered, it would be invalid: suspension is for investigation, not punishment, and the letter did not specify the misconduct. The Respondent did not controvert the Claimant's testimony that he was dismissed verbally and continued working to 1st July 2013.
Whether the casual contract had converted to a term contract
The contract converted from casual to term contract by operation of section 37 of the Employment Act after about 13 months of continuous work
Section 37(1) provides that where a casual employee works for a period equivalent to not less than one month, the contract is deemed to be one where wages are paid monthly, attracting section 35(1)(c). The Claimant had worked about 13 months, so he was entitled to notice, leave, service pay and other statutory benefits.
Entitlement to the remedies sought
The Claimant was awarded notice pay, leave pay, underpayments, public holiday pay, overtime, unlawful deductions, service pay and one month's compensation
The Respondent adduced no evidence beyond its defence and submissions, and did not deny that the Claimant took no annual leave, was underpaid, worked public holidays and overtime, and suffered unlawful deductions. Denials in submissions cannot rebut sworn evidence. Compensation was limited to one month's salary given the short service of one year, taking into account section 49(4) factors.
Legal principles established
#- Suspension is not a punishment but a tool for investigation where the employer cannot carry out investigations while the employee is at work
- A casual employee who works for the equivalent of not less than one month is deemed by section 37 of the Employment Act to be on a monthly term contract
- Mere denials in submissions cannot rebut uncontroverted sworn evidence
- Termination without a hearing or notice is unfair
Court orders
#- 1.Payment in lieu of notice at Shs.10,778 based on monthly pay in the general order (basic pay for turn boy plus 15% house allowance)
- 2.Pay in lieu of accrued leave of Shs.7,544.60 for 21 days
- 3.Underpayments totalling Kshs.33,668.30
- 4.Public holiday pay of Shs.5,387.40 for 12 public holidays
- 5.Overtime of Shs.137,331.70
- 6.Unlawful deductions of Shs.1,500
- 7.Service pay of Shs.5,364.50 for one completed year
- 8.Compensation of one month's salary at Shs.10,678.15
- 9.Respondent to pay Claimant's costs of the suit
- 10.Decretal sum to attract interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (unfair termination and employment benefits claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Katiezo Aligulah v Eldomatt Wholesale And Supermarket Ltd [2016] KEELRC 845 (KLR)", Case Analysis (2016). Cause No. 6 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/845/eng@2016-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.