Kenya Union of Domestic Hotels Educational Institutions Hospitals and Allied Workers v Office of the Vice Chancellor, Kibabii University [2017] KEELRC 1976 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Grievants' fixed term contracts had lapsed
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.
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.
Validity of the 27th June 2017 notice
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).
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.
Whether the termination constituted redundancy under section 40
No redundancy; the services were not superfluous and there was no abolition of office, so section 40 was not triggered.
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.
Continuous service and entitlement to confirmation
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.
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.
Whether the Respondent's practice amounted to unfair labour practice
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.
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.
Legal principles established
#- 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
#- 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.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.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.There shall be no orders for costs
- Jurisdiction invoked
- Article 162 of the Constitution and section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.