Ogaro v Lavington Security; Kenya National Private Security Workers Union (Interested Party) (Cause 281 of 2013) [2017] KEELRC 2012 (KLR)

The statutory definition of a casual employee is one paid at the end of each day and engaged for not longer than 24 hours at a time. Continuous employment spanning nearly five years, and a written contract providing a monthly salary of Kshs. 5,000 on a renewable 3-month term, contradicted the Respondent's averment of casual engagement. Section 37 provides for automatic conversion of casual employment to a term contract.

Section 44(4)(a) permits dismissal for absence without leave or lawful cause, but the employer made no attempt to find out whether there was lawful cause for the absence. No hearing under section 41 was conducted despite the Respondent's claim of attempted disciplinary hearings, which was not reflected in the letters of 7th and 12th April 2011. The Claimant's demand for a salary increase was not denied and could not justify dismissal under section 46(h).

Since remedies are based on salary, the court established the applicable minimum wage for a night guard (the higher wage, the Claimant having worked both shifts), fixed the gross salary at Kshs. 8,651.45 including 15% house allowance, and computed underpayments over the employment period. Overtime was based on 72 hours worked per week against the 52 maximum hours in the applicable Regulation of Wages (Protective Security Services) Order, awarded for 12 months as a continuing injury. Annual leave was computed at 26 working days per year for 4 years 8 months.