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ELRCPartially AllowedCause No. 158 of 2015· [2016] KEELRC 1737 (KLR)

Lawi Wekesa Wasike v Mattan Contractors Limited [2016] KEELRC 1737 (KLR)

Employment and Labour Relations Court
27 January 2016
MMM. Mbaru
1,739 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant sued the Respondent for unfair termination and terminal dues, claiming he was employed as a Machine/Plant Operator in September 2012 at a monthly salary of Kshs. 20,000 and terminated in January 2015 without notice or a hearing. He sought notice pay, salary for January 2015, a certificate of service, annual leave pay, compensation and general damages for unfair termination. The Respondent denied the claims, contending the Claimant was a casual labourer engaged on and off from 2014 only when tarmacking work was available, and that on 25th January 2015 he reported to work drunk, drove a hired PTR machine into a ditch at Upperhill, then disappeared after the accident was reported to the police. The court held that the Respondent's failure to keep employment records as mandated by Part X and section 79 of the Employment Act worked against it, so the Claimant's evidence was preferred. Given continuous employment exceeding two months, section 37 of the Employment Act converted the Claimant to a full-time employee by operation of law. Even if gross misconduct were established, section 41(2) required notice and a hearing before summary dismissal; the police report was never pursued, and the termination was unfair under section 45. The court awarded notice pay of Kshs. 20,000 and compensation of one month's salary, but declined the January 2015 salary claim as unsubstantiated, and ordered each party to bear its own costs. Judgment was delivered on 27th January 2016 by M. Mbaru, J.

Key legal issues

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01

Status of the Claimant - casual or full-time employee

Holding

The Claimant was a full-time employee by operation of section 37 of the Employment Act, having worked continuously for well over two months

Reasoning

The Respondent kept no employment records as required by section 79 of the Employment Act, contrary to mandatory provisions. Without records identifying casual employees, the court preferred the Claimant's evidence that he was employed monthly from September 2012. Continuous employment exceeding two months triggered section 37, converting him to a full-time employee entitled to statutory protections.

p. 2
02

Fairness of the termination

Holding

The termination was unfair under section 45 of the Employment Act as the Claimant received no notice or hearing despite allegations of gross misconduct

Reasoning

Section 41(2) requires notice and hearing even for summary dismissal on grounds of gross misconduct. The Respondent dismissed the Claimant on the spot after the machine accident without notice or reasons. The police report over the alleged drunken accident was never pursued, leaving the misconduct unestablished through due process, rendering the termination procedurally unfair.

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03

Remedies payable

Holding

Notice pay of Kshs. 20,000 and compensation of one month's salary awarded; salary for January 2015 refused for want of proof

Reasoning

The Claimant was entitled to notice under section 35 and compensation for the procedural lapse. However, the salary claim for January 2015 was rejected because the Claimant, whose salaries were paid via Mpesa, did not substantiate the unpaid dues in clear terms.

p. 3

Legal principles established

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  • An employer's failure to keep employment records as required under Part X and section 79 of the Employment Act works against the employer, and in the absence of records the employee's evidence is to be believed
  • A casual employee engaged continuously for two months or more becomes a full-time employee by operation of section 37 of the Employment Act
  • Even where gross misconduct justifies summary dismissal, section 41(2) of the Employment Act requires notice and a hearing before termination

Court orders

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  1. 1.Judgment entered for the Claimant for notice pay at Kshs. 20,000.00
  2. 2.Compensation for unfair termination awarded at one month's salary, Kshs. 20,000.00
  3. 3.Each party shall meet its own costs

Authorities

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Legislation

  • Employment Actsection 79 (Part X)
  • Employment Actsection 37
  • Employment Actsection 41(2)
  • Employment Actsection 45
  • Court Rules (Employment and Labour Relations Court)Rule 4
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act (Cause No. 158 of 2015, unfair termination claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Lawi Wekesa Wasike v Mattan Contractors Limited [2016] KEELRC 1737 (KLR)", Case Analysis (2016). Cause No. 158 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1737/eng@2016-01-27

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