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ELRCDismissedCause No. 257 of 2015· [2018] KEELRC 22 (KLR)

Wyciffe Sagara Kadagi v Shirdi Trading Stores Ltd [2018] KEELRC 22 (KLR)

Employment and Labour Relations Court of Kenya
30 July 2018
MMM. Mbaru
1,649 words in judgment
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The bottom line

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A Kenyan court dismissed a worker's Sh206,000 claim because he absconded to a new job, confirming casual workers still earn full rights under section 37.

What this practically means

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Executive summary

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The claimant sued the respondent store claiming notice pay of Kshs.10,777.95, underpayments of Kshs.65,670.00 and compensation of Kshs.129,335.00 arising from his employment as a turn boy from 3rd January 2011 until his alleged summary dismissal on 31st December 2013 without valid reason or a hearing contrary to section 41 of the Employment Act. The respondent denied that the claimant was a turn boy, asserting he was a casual employee engaged in loading and offloading goods, paid above the minimum wage for days worked, and that he absconded duty after being sent to Nairobi and failed to account for work. The court found conflicting evidence on the claimant's position and adopted the description in the report to the County Labour Office of a General Labourer. Applying section 37 of the Employment Act, the court held that prolonged casual employment attracts statutory rights, but the respondent had complied by granting rest days, leave pay, and NHIF and NSSF remittances; quantified with these benefits, the daily wage paid exceeded the statutory minimum throughout, so no underpayment was made out. On the termination, the court treated the claimant's account with caution because his own contract with Chan Services, commencing 2nd January 2014, showed he had already taken up new employment, supporting the defence of abscondment. Relying on George Musamali v G4S and Joseph Onyango Asere v Brookside Dairy, the court held that misconduct does not require criminal-trial-like procedures. Notice pay and compensation were refused as rewarding gross misconduct. The entire claim was dismissed with each party bearing its own costs. Judgment was delivered at Nakuru on 30th July 2018 by M. Mbaru, Judge.

Key legal issues

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01

Status of employment and underpayment claim

Holding

The claimant was a general labourer; when his work benefits were quantified, his daily pay exceeded the statutory minimum, hence no underpayment

Reasoning

The court found conflicting evidence on the claimant's position and took him to be a general labourer as described in the report to the County Labour Office. Applying section 37, prolonged casual employment attracts full statutory rights, but the respondent complied by granting rest days, leave pay and statutory remittances. Quantified, the daily wage paid exceeded the minimum wage for 2011, 2012 and 2013.

p. 2
02

Fairness of the termination

Holding

The claimant absconded duty after being sent to Nairobi and secured new employment by 2nd January 2014, justifying summary treatment without a formal hearing

Reasoning

The court treated the claimant's evidence of being sent away with caution because his own contract with Chan Services commenced on 2nd January 2014, showing he had already left. Section 44 permits dispensing with a hearing where circumstances do not allow, and the respondent made efforts to reach the claimant, including through his wife.

p. 3
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Entitlement to notice pay and compensation

Holding

Neither is due to an employee who absconds and takes up new employment without notice

Reasoning

Given the finding of abscondment and gross misconduct, awarding notice pay or compensation would improperly reward the claimant's conduct. The dismissal claims therefore fail in their entirety.

p. 3

Legal principles established

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  • Where casual employment continues beyond a daily allocation of work despite daily wage payments, the employee is entitled to rights and benefits under the Employment Act by application of section 37
  • Once there is misconduct, the employer is not required to undertake procedures similar to a criminal trial; the employee must simply be invited and given a fair chance to explain himself
  • Notice pay is not due to an employee who absconds duty and takes up new employment without notice to the former employer

Court orders

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  1. 1.The claims made are dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Act, 2007section 37
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 44

Cases cited (2)

  • George Musamali versus G4S Security Services Kenya Ltd
    [2016] eKLR
  • Joseph Onyango Asere versus Brookside Dairy Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007)

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, "Wyciffe Sagara Kadagi v Shirdi Trading Stores Ltd [2018] KEELRC 22 (KLR)", Case Analysis (2018). Cause No. 257 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/22/eng@2018-07-30

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