Joseph Wambua Kitheka v Endmor Steel Millers Limited [2018] KEELRC 427 (KLR)
The bottom line
#A Kenyan court ruled that a 'casual' worker with over a month of continuous service is legally a monthly employee, and firing him without a fair hearing was unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was a casual or permanent employee
The claimant's casual engagement converted to a monthly term contract after one month of continuous service; the issue of permanent employment is a misnomer.
The claimant was engaged as a casual paid weekly but worked continuously from 19th February 2010 to 20th August 2011. Section 37(1) deems the contract to be monthly where a casual works the equivalent of not less than one month or performs work not completable within three months. The issuance of a letter of termination itself showed the respondent acknowledged he was not a casual, since a casual's contract terminates at the end of the day.
Whether the termination was unfair
The termination was unfair within the meaning of sections 45(1) and (2) of the Employment Act.
Having been converted to a monthly contract employee with over 13 months' service, the termination had to comply with sections 41 and 43. The respondent gave no notice to show cause and produced no disciplinary proceedings as proof; the claimant was not subjected to a fair hearing, and the reason in the termination letter was denied by the claimant, leaving the employer unable to prove a valid reason and fair procedure.
Entitlement to rest day and public holiday pay
As a converted monthly contract employee, the claimant was entitled to paid weekly rest days and public holidays, and double pay for any such days actually worked.
Under section 37(2) and (3), the converted employee was entitled to one paid rest day after six continuous working days and paid public holidays. The court presumed the claimant did not work on rest days or public holidays, awarding only the statutory paid rest days and public holidays (80 weeks and 16 holidays at Kshs.550), not the additional double-rate pay claimed for days worked.
Entitlement to service pay and severance
Service pay was not awarded on the NSSF exemption basis urged by the respondent, and severance pay was rejected as there was no redundancy.
The respondent argued the claimant, being an NSSF member, was not entitled to service pay under section 35(6)(d). The claimant's final itemised award made no provision for service pay, and the court expressly rejected the severance pay prayer because the claimant was not declared redundant.
Legal principles established
#- A casual employee who has worked for the equivalent of not less than one month or whose work cannot be completed within three months is deemed by section 37(1) of the Employment Act to be employed on monthly terms.
- There is no such thing as permanent employment; every contract of employment is terminable by notice, and the Employment Act's minimum terms are implied in every contract.
- An employer must prove both valid reason and fair procedure for a termination to be fair under section 45 of the Employment Act.
Court orders
#- 1.Declaration that the claimant's employment was converted to monthly contract terms by virtue of Section 37(1) of the Employment Act
- 2.Declaration that the termination of the claimant's employment was unfair
- 3.Payment in lieu of notice of Kshs.16,500
- 4.Pay in lieu of annual leave of Kshs.15,400
- 5.Paid rest days of Kshs.44,000
- 6.Paid public holidays of Kshs.8,800
- 7.Two days' salary not paid of Kshs.1,100
- 8.Compensation for unfair termination of three months' salary in the sum of Kshs.49,500
- 9.Total award of Kshs.135,300
- 10.Respondent to pay the claimant's costs
- 11.Interest to accrue on the decretal sum from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the dispute referred under sections 41, 43, 45 and 47(5) of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Wambua Kitheka v Endmor Steel Millers Limited [2018] KEELRC 427 (KLR)", Case Analysis (2018). ELRC Cause (Nairobi), filed 22nd June 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/427/eng@2018-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.