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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 1129 (KLR)

Pauline Muthoni Mwai v Kenya Methodist University (Cause 138 of 2015) [2016] KEELRC 1129 (KLR)

Employment and Labour Relations Court
3 June 2016
1,468 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 gain full employment rights, and firing them without notice or a fair reason is unlawful and costly.

What this practically means

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Executive summary

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The claimant, employed as auxiliary staff (tea and snack service) at the respondent's Nyeri Campus from January 2011 to May 2015 at a daily rate of Kshs.298.16, was dismissed on 15.05.2015 without notice or reasons after inducting her replacement. The respondent had internally advertised a tea and meetings service position requiring catering qualifications without notifying her. She sought a declaration that she was not a casual employee, reinstatement, or alternatively salary arrears, notice pay, leave pay, damages under section 45, gratuity, and refunds of NSSF/NHIF deductions. The court framed two issues: unfairness of termination and entitlement to remedies. It held that her continuous service of over four years on a permanent job converted her casual employment to statutory minimum terms under section 37 of the Employment Act, 2007. The respondent unilaterally introduced qualifications contrary to section 10(5), gave no notice or hearing under section 41, and the reason for termination was invalid under section 43. Finding a discriminatory removal under section 5, the court awarded 12 months' wages plus one month's notice pay (390 days at Kshs.432.45), the Labour Officer's admitted underpayment of Kshs.67,145.00, leave pay of Kshs.36,333.40, and gratuity of Kshs.51,904.80 under section 35(5), totaling Kshs.324,048.70. Reinstatement was refused as her position was filled; NSSF refund was declined because gratuity was awarded; NHIF refund failed as deductions were remitted. Judgment was entered for the claimant with costs, payment due by 01.08.2016 failing interest at court rates.

Key legal issues

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01

Status of the claimant's employment

Holding

The claimant's casual employment converted to employment on minimum statutory terms under section 37

Reasoning

The claimant worked without a break from January 2011 to May 2015 on a permanent job requiring continuous performance beyond a month, and served over four years. The court held the service was not casual and that the minimum statutory terms applied, including the wage order rate of Kshs. 432.54 per day.

p. 2
02

Fairness of the termination

Holding

The termination was unfair under sections 41, 43 and 45 of the Employment Act, 2007

Reasoning

The respondent gave no notice or hearing and unilaterally introduced academic qualifications for the position. Section 10(5) required consultation and written notice of any change of terms, and the burden under section 10(7) lay on the employer. The reason for termination was therefore invalid and no procedural fairness was afforded.

p. 2
03

Remedies

Holding

The claimant was awarded 12 months' wages plus one month notice pay, salary arrears of Kshs.67,145.00, leave pay of Kshs.36,333.40 and gratuity of Kshs.51,904.80; reinstatement and refunds refused

Reasoning

Given 4 years of dedicated service and discriminatory removal, the court awarded maximum compensation of 12 months' wages plus notice pay under section 49(1)(c) and section 35(1)(c). Reinstatement was not available as another person occupied the position, and gratuity substituted for the unremitted NSSF deductions.

p. 2
04

Discrimination

Holding

The claimant was subjected to discriminatory removal in terms of section 5 of the Employment Act, 2007

Reasoning

The internal advertisement for the tea and meetings service position was not open, the claimant was not notified, and she was removed after inducting her replacement. The court considered this discriminatory removal as an aggravating factor in awarding maximum compensation.

p. 2

Legal principles established

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  • A casual employment that endures without a break and involves a permanent, continuous job converts to employment on statutory minimum terms under section 37 of the Employment Act, 2007
  • An employer cannot unilaterally vary employment terms or introduce new qualifications; changes require consultation and written notification under section 10(5), and termination without notice and hearing under sections 41 and 43 is unfair

Court orders

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  1. 1.Declaration that the termination of the claimant's employment by the respondent was unfair
  2. 2.The respondent to pay the claimant a sum of Kshs.324,048.70 by 01.08.2016 failing which interest at court rates from the date of judgment till full payment
  3. 3.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 37
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 35(5)
  • Employment Act, 2007section 10(5)
  • Employment Act, 2007section 10(7)
  • Employment Act, 2007section 5
  • Relevant Wage Order L.N. No. 197 of 2013minimum wage effective January 2014

Cases cited (1)

  • Ephraith Muthoni Mugo –Versus- B.O.M. Kianamu Primary School
    [2016]eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007 and the claim following a grievance before the Labour Officer at Nyeri)

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, "Pauline Muthoni Mwai v Kenya Methodist University (Cause 138 of 2015) [2016] KEELRC 1129 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1129/eng@2016-06-03

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