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ELRCPartially AllowedMemorandum of Claim dated 6th July 2017 (Elc. cause, Kisumu)· [2017] KEELRC 1976 (KLR)

Kenya Union of Domestic Hotels Educational Institutions Hospitals and Allied Workers v Office of the Vice Chancellor, Kibabii University [2017] KEELRC 1976 (KLR)

Employment and Labour Relations Court
29 September 2017
4,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that workers kept on repeated short contracts become permanent employees, and employers cannot terminate them with just a three-day notice.

What this practically means

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Executive summary

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The Claimant union, with a recognition agreement with Kibabii University, sued on behalf of 47 temporary employees whose services were ended by an internal memo dated 27th June 2017 followed by an advertisement of their positions on 3rd July 2017. The union alleged the move was an unlawful redundancy effected with only 3 days' notice, in breach of sections 35, 40, 41 and 43 of the Employment Act, Articles 36, 41, 43(e), 47 and 50 of the Constitution and the parties' CBA, and sought reinstatement and restraining orders. The Respondent countered that the employees were on fixed term contracts which lapsed by effluxion of time on 30th June 2017, that the memo merely notified them of the lapse, and that standard practice was fresh recruitment with priority to the same staff, most of whom reapplied. The court framed five issues and found that all the contracts had expired before the notice, so by virtue of section 37 of the Employment Act the employees were on open ended monthly contracts; that the 3-day notice was invalid under section 35(1)(c); that there was no redundancy since the services were not superfluous; that repeated cyclical fixed term engagement of essential staff was an unfair labour practice contrary to Article 41 and sections 5 and 37(4) and (5); and that, the Respondent having failed to produce employment records, the Grievants had served continuously for between one year three months and five years ten months. The court restrained termination on grounds of expiry of fixed term contracts, declared the Grievants regular employees entitled to letters of confirmation, and directed due process for any exception, with no order as to costs.

Key legal issues

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01

Whether the Grievants' fixed term contracts had lapsed

Holding

All contracts had expired before 27th June 2017, so the employees were serving on open ended monthly contracts under section 37 of the Employment Act.

Reasoning

The court examined the three sets of contracts on record, expiring on 28th February 2017, 31st May 2017 and 30th May 2017 respectively. By 30th June 2017 all had lapsed, meaning the notice of 27th June 2017 did not terminate valid fixed term contracts; by operation of section 37 the continuing employment converted to monthly terms.

p. 6
02

Validity of the 27th June 2017 notice

Holding

The 3-day general notice was invalid; each employee was entitled to at least one month's individual notice or pay in lieu under section 35(1)(c).

Reasoning

Having converted to monthly contracts, the Grievants fell within section 35(1)(c) of the Employment Act, which requires twenty-eight days' notice in writing. A blanket 3-day memo to all staff could not satisfy this requirement.

p. 7
03

Whether the termination constituted redundancy under section 40

Holding

No redundancy; the services were not superfluous and there was no abolition of office, so section 40 was not triggered.

Reasoning

Applying the definition of redundancy in section 2 of the Employment Act, the court found the positions remained necessary since the Respondent filled them back-on-back. The Treasury recruitment freeze did not excuse non-compliance because the circular requires approval, not prohibition of recruitment, and the Respondent never sought such approval.

p. 7
04

Continuous service and entitlement to confirmation

Holding

The Grievants had served continuously for between one year three months and five years ten months, as the Respondent failed to produce employment records to controvert this.

Reasoning

Under sections 10 and 74 of the Employment Act the employer bears the duty to keep and produce employment records. The Respondent merely denied the Claimant's averments in oral submissions without substantive response or documentary rebuttal, shifting the burden to it under section 10(6) and (7), so the court assumed the averments in Appendix KB1 true.

p. 8
05

Whether the Respondent's practice amounted to unfair labour practice

Holding

Yes - repeated cyclical fixed term engagement of essential staff violated Article 41 of the Constitution and sections 5, 37(4) and (5) of the Employment Act.

Reasoning

The Respondent admitted it could not operate without the Grievants, making them essential staff, yet kept them on short contracts with periodic reapplication. This conduct contravened the constitutional protection of fair labour practices and the statutory prohibition in sections 5 and 37(4) and (5), even if intended to comply with Treasury restrictions on recruitment.

p. 7

Legal principles established

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  • Where fixed term contracts have expired but the employee continues to serve, the contract converts by operation of section 37 of the Employment Act.
  • An employer who keeps staff on successive short fixed term contracts for essential positions commits an unfair labour practice.
  • Failure by an employer to produce prescribed employment records shifts the burden of proof to the employer under section 10(6) and (7) of the Employment Act.

Court orders

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  1. 1.The Respondent be and is hereby restrained from terminating the employment of any of the Grievants for reason of expiry of their fixed term employment contracts
  2. 2.The Grievants be and are hereby declared to be regular employees of the Respondent and the Respondent to issue them with letters of confirmation of appointment
  3. 3.That should there be any reasons why any of the Grievants cannot be engaged on regular basis the Respondent must take them through due process as provided in law and in the parties collective bargaining agreement
  4. 4.There shall be no orders for costs

Authorities

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Legislation

  • Employment Actsections 2, 5, 10, 10(6) and (7), 12, 35, 35(1)(c), 37, 37(4) and (5), 40, 41, 43, 46(d), 74
  • Constitution of Kenya, 2010Articles 36(1), 41, 43(e), 47, 50, 162
  • Employment and Labour Relations Court Actsection 12
  • Universities Actsection 34
  • Treasury Circular No. 02/2016Recruitment of Staff
  • ILO Convention No. 158protection against unfair dismissal
Jurisdiction invoked
Article 162 of the Constitution and section 12 of the Employment and Labour Relations Court Act

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, "Kenya Union of Domestic Hotels Educational Institutions Hospitals and Allied Workers v Office of the Vice Chancellor, Kibabii University [2017] KEELRC 1976 (KLR)", Case Analysis (2017). Memorandum of Claim dated 6th July 2017 (Elc. cause, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1976/eng@2017-09-29

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