Pauline Muthoni Mwai v Kenya Methodist University (Cause 138 of 2015) [2016] KEELRC 1129 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Status of the claimant's employment
The claimant's casual employment converted to employment on minimum statutory terms under section 37
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.
Fairness of the termination
The termination was unfair under sections 41, 43 and 45 of the Employment Act, 2007
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.
Remedies
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
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.
Discrimination
The claimant was subjected to discriminatory removal in terms of section 5 of the Employment Act, 2007
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.
Legal principles established
#- 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
#- 1.Declaration that the termination of the claimant's employment by the respondent was unfair
- 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.The respondent to pay the claimant's costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.