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ELRCPartially AllowedCause Number 609 of 2014· [2016] KEELRC 1043 (KLR)

Kenya Plantation And Agricultural Workers Union v Kenya Agricultural & Livestock Research Organization [2016] KEELRC 1043 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
27 June 2016
JRJames Rika
5,239 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that 13 years of continuous work made a 'casual' plumber a regular employee, and his employer still had to formally terminate him fairly.

What this practically means

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Executive summary

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The Claimant Union sued on behalf of its member, Francis Mbingo Mutua (the Grievant), a plumber employed by the Respondent, a state agricultural research corporation, contending that his employment was unfairly and unlawfully terminated in October 2013 when he was asked to take a break and never recalled. The Grievant sought reinstatement, salary to reinstatement, or alternatively unpaid sewerage wages of Kshs. 8,000, notice pay, annual leave pay, service pay, rest days and public holidays pay, 12 months' compensation, costs and interest. The Respondent maintained the Grievant was a casual employee who agreed to unblock the sewerage system for Kshs. 70 per day, changed his mind, and deserted employment voluntarily. The Court held the Grievant's first engagement was in 2000, and that after 13 years of continuous service he was a regular employee under Section 37 of the Employment Act 2007; the casual engagement forms were unlawful and violated the constitutional right against unfair labour practices. Even if the Grievant deserted, the Respondent was obliged to pursue him, hear him at a disciplinary forum, and formally terminate; failing this breached Sections 41, 43 and 45 of the Employment Act and the termination was unfair. However, the Grievant substantially contributed to his own loss by changing his mind about the sewerage task and leaving voluntarily, so he received minimal compensation of 2 months' salary (Kshs. 21,580), unpaid sewerage wages (Kshs. 1,820), service pay for 10 years (Kshs. 62,250), and general damages of Kshs. 250,000 for years of unfair labour practices - a total of Kshs. 335,650 payable through the Union within 30 days. Reinstatement, back-wages, notice pay, leave pay and rest days/public holidays claims were declined, with no order on costs.

Key legal issues

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01

Status of the Grievant: casual or regular employment

Holding

The Grievant was a regular employee under Section 37 of the Employment Act after 13 years of continuous service; the casual engagement forms were unlawful

Reasoning

The court examined the period worked in the aggregate under Section 37(1)(a) and the nature of the work under 37(1)(b). Water supply work was continuous, central to the Respondent's research activities, and not transient. Contracts denying conversion and benefits openly violated the Employment Act and the constitutional right against unfair labour practices.

p. 5
02

Whether termination was unfair

Holding

Termination was unfair: the Respondent breached Sections 41, 43 and 45 of the Employment Act by failing to give a reason, hear the Grievant, or formally terminate

Reasoning

Even if the Grievant deserted, the Respondent was obliged to pursue him - he lived in the staff houses within plain sight - summon him to a disciplinary hearing, and formally terminate while paying terminal dues. The route taken by the Respondent breached the Employment Act and rendered termination unfair.

p. 7
03

Compensation quantum and the Grievant's contribution to the termination

Holding

Compensation reduced to a minimal 2 months' salary because the Grievant substantially contributed to his loss by changing his mind about the sewerage task and leaving voluntarily

Reasoning

The Grievant accepted the sewerage task, changed his mind in the Farm Manager's absence, made no effort to resume discussions, and left the staff house voluntarily. His conduct encouraged the Respondent's mistaken belief he had terminated his own contract, warranting minimal compensation of 2 months' salary.

p. 7
04

General damages for unfair labour practices

Holding

Kshs. 250,000 in general damages awarded for 13 years of service under unlawful contracts violating fair labour practices

Reasoning

The Respondent, a public body that should set an example, subjected the Grievant to contracts expressly denying leave, gratuity and confirmation, in violation of the Employment Act and the constitutional right against unfair labour practices. A modest general damages award was merited for the years of abuse.

p. 8

Legal principles established

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  • Public bodies must lead the way in decasualization of labour
  • A casual employee engaged continuously for the equivalent of one month or more is converted to a regular employee under Section 37 of the Employment Act, and contracts denying this are unlawful
  • Where an employee deserts or absconds, the employer must still pursue the employee, grant a disciplinary hearing, and formally terminate with terminal dues; an employee cannot simply be deemed to have dismissed himself
  • General damages may be awarded for prolonged denial of fair labour practices through unlawful contracts

Court orders

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  1. 1.Declaration that termination of the Grievant's employment was unfair
  2. 2.Finding that the Grievant made significant contribution to the termination of his contract of employment
  3. 3.Award of 2 months' salary in compensation for unfair termination at Kshs. 21,580
  4. 4.Award of unpaid sewerage wages of Kshs. 1,820 (Kshs. 70 x 26 days)
  5. 5.Award of service pay of Kshs. 62,250 based on 10 years of service
  6. 6.Award of general damages of Kshs. 250,000 for denial of fair labour practices
  7. 7.Total award of Kshs. 335,650 to be paid to the Grievant through his Union within 30 days of delivery of the Award
  8. 8.No order on costs

Authorities

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Legislation

  • Employment Act 2007Section 37(1)(a), (b), (3), (4)
  • Employment Act 2007Section 41
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45
  • Employment Act 2007Section 44
  • Employment Act 2007Section 35(1)(c)
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
  • Constitution of KenyaRight against unfair labour practices (referenced in relation to the constitutional era beginning August 2010)

Cases cited (4)

  • Juma Mwachidudu Mwazarakwe v. Rea Vipingo
    [2015] e-KLR
  • Kenya Plantation and Agricultural Workers Union v. Rea Vipingo
    Nairobi Industrial Court Cause Number 958 of 2010
  • Pius Machafu Isindu v. Lavington Security Guards Limited
    Nairobi Industrial Court Cause Number 1050 of 2012
  • Dock Workers Union v. Kenya Ferry Services
    (2015) e-KLR
Jurisdiction invoked
Original jurisdiction under the Industrial Court Act; Award issued 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 (2)

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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, "Kenya Plantation And Agricultural Workers Union v Kenya Agricultural & Livestock Research Organization [2016] KEELRC 1043 (KLR)", Case Analysis (2016). Cause Number 609 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1043/eng@2016-06-27

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