Boaz Ogweno, Joshua Mwau & 21 others v Managing Director, Bakers Choice ,Confectionary Limited & another [2016] KEELRC 1716 (KLR)
The bottom line
#Kenya's Employment Court ruled that workers locked out for joining a union were unfairly terminated, awarding each notice pay and six months' compensation.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimants' employment (casual vs permanent)
Though engaged as casuals, the Claimants' contracts required 7 days' notice or pay in lieu, and after June 2008 the Employment Act 2007 converted casual jobs to permanent employment.
The Claimants gave evidence that they were paid weekly, meaning their contracts could only be terminated on 7 days' notice or payment of 7 days' salary. The respondents' daily attendance sheets covered only a few months in 2003-2004 and were not a representative sample. After the Employment Act 2007 came into force in June 2008, casual jobs were converted to permanent and reasons for termination had to be given; the fresh fixed-term contracts offered to some Claimants from August 2008 did not cure this.
Fairness of termination
The termination was unfair and unjustified because no reasons were given and no due process was followed.
Neither notice nor 7 days' pay in lieu was given, and after the Employment Act 2007 came into force reasons for termination were required but none were given. The court found the failure to give reasons and follow due process rendered the termination unfair, and also drew an adverse inference from the respondents' failure to produce the master roll or attendance records for 2008.
Remedies
Each Claimant was awarded one month's salary in lieu of notice and six months' salary as compensation for unlawful termination, plus costs.
The court assessed compensation at six months' salary rather than the twelve months claimed, and awarded notice pay. The claims for severance, gratuity, overtime, leave, public holiday pay and a certificate of service, though sought, were not granted in the final orders. Individual amounts were tabulated per claimant based on their respective monthly salaries.
Legal principles established
#- Where an employer is the custodian of employment records and fails to produce them, the court may presume the records would have been prejudicial to the employer.
- Termination without reasons and without due process under the Employment Act 2007 is unfair.
Court orders
#- 1.Award of 1 month's salary in lieu of notice to each Claimant
- 2.Award of 6 months' salary as compensation for unlawful termination to each Claimant
- 3.Costs of the suit to the Claimants
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and terminal dues claims (Cause No. 757 N of 2009)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boaz Ogweno, Joshua Mwau & 21 others v Managing Director, Bakers Choice ,Confectionary Limited & another [2016] KEELRC 1716 (KLR)", Case Analysis (2016). Cause No. 757 N of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1716/eng@2016-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.