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ELRCDismissedMemorandum of Claim dated 22nd September, 2014 (Employment Cause)· [2016] KEELRC 1165 (KLR)

Kennedy Ouru Okise v James Finlays (K) Limited [2016] KEELRC 1165 (KLR)

Industrial Court (Employment and Labour Relations Court)
17 May 2016
DMD.K. Njagi Marete
1,388 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a fixed term job ends automatically when it expires, so the seasonal tea plucker's claim for unfair termination failed.

What this practically means

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Executive summary

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The claimant, employed by the respondent at various times between 2010 and 2013, claimed his services were unlawfully terminated without payment of terminal dues. He alleged the trade union was not notified of any redundancy, and that he received no notice pay, leave pay or severance, and that he was underpaid contrary to the Regulation of Wages (General) (Amendment) Order and unpaid for overtime, rest days and public holidays. He sought notice pay, service gratuity, accrued leave and twelve months' compensation totalling Kshs.196,261, plus declarations, costs and interest. The respondent, an agricultural enterprise engaging workers on permanent and seasonal/fixed term contracts under a CBA with KPAWU, maintained the claimant was employed on a five months fixed term contract from 22nd October 2013 as a seasonal plucker, which was terminated by two weeks' notice under clause 20 c ii of the CBA, with terminal benefits paid. The parties agreed to dispose of the matter by written submissions. The court framed four issues. Relying on authority that fixed term contracts terminate automatically on expiry absent an agreement to renew, and that a court cannot vary negotiated contracts to extend them, the court found the claimant failed to discharge the burden of proving a termination or controvert the fixed term contract. The court held there was no termination of employment, the remaining issues fell away, and the claimant was not entitled to relief. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the claimant's employment was terminated by the respondent

Holding

No termination occurred; the claimant was on a seasonal/fixed term contract which lapsed by effluxion of time after notice

Reasoning

The claimant was employed on a five months fixed term contract as a seasonal plucker under the CBA between KPAWU and KTGA. He was served two weeks' notice confirming the contract was ending under clause 20 c ii, and was paid terminal benefits of wages, travel and accrued leave. The claimant did not controvert the fixed term contract or its lapse. The court found no termination on a preponderance of evidence.

p. 4
02

Whether any termination was wrongful, unfair and unlawful, and entitlement to relief

Holding

Both issues fall away with the finding that there was no termination; the claimant is not entitled to the relief sought

Reasoning

Having found no termination of employment, the questions of unfairness under section 40 of the Employment Act and entitlement to notice pay, service gratuity, leave dues and 12 months' compensation do not arise. The claimant failed to discharge the burden of proof and did not displace the respondent's evidence of a fixed term contract that lapsed on time.

p. 4

Legal principles established

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  • An employment contract for a fixed term terminates automatically upon expiry of the period unless the parties agree to renew it, and no notice pay or renewal expectation arises where the employee was aware the contract was coming to an end
  • He who alleges must prove; a claimant bears the burden of proving unlawful termination on a preponderance of evidence

Court orders

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  1. 1.Dismissal of the claim
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment Acts.40
  • Regulation of Wages (General) (Amendment) Order

Cases cited (4)

  • Anne Theuri vs Kadet Limited
    Industrial Cause No.368 (N) of 2009
  • Samuel Chacha vs Kenya Medical Research Institute
    Cause No.1901 of 2013
  • Kyangavo vs KCB
    Case No.428 of 2001
  • SA Rugby (PTY) vs CCMA & Others
    [2006] 27 ILJ 1041 (LC)
Jurisdiction invoked
Employment and labour relations jurisdiction over claims of unfair termination and non-payment of terminal dues (Employment Act, s.40 cited)

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, "Kennedy Ouru Okise v James Finlays (K) Limited [2016] KEELRC 1165 (KLR)", Case Analysis (2016). Memorandum of Claim dated 22nd September, 2014 (Employment Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1165/eng@2016-05-17

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