Joseph Otieno Onyango & 3 others v Jihan Freighters Limited [2018] KEELRC 443 (KLR)
The bottom line
#A Mombasa court confirmed long-serving 'casual' workers are regular employees, but still cut their compensation because they ignored lawful employer instructions.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimants: casual or regular employees
Claimants deemed regular employees by reason of aggregate continuous service over 6 years
The Claimants worked as Loaders and Clerks from 2005/2006, initially as casuals, then on 2-year term contracts, reverting to casual terms after expiry. The court looked at the aggregate number of days worked rather than absences, found continuity of the same work for over 6 years, and held they qualified as regular employees entitled to Employment Act protections.
Validity of the reason for termination
Valid reason existed - gross misconduct by persistent refusal to surrender identity cards
The Respondent had good reason to require identity cards for warehouse security and payment purposes. Employees who complied continued working. Refusal to obey reasonable, lawful instructions amounted to gross misconduct under Section 44(4), justifying summary dismissal; hence no notice pay.
Procedural fairness of the termination
Procedure flawed; no disciplinary hearing, charges or letters were issued
Although the Claimants' refusal of workplace access complicated the process, the Respondent should have attempted a disciplinary hearing, issued letters requiring explanation, presented charges and heard the Claimants. Sections 41 and 45 procedural protections were disregarded, warranting compensation albeit minimal given the Claimants' contributory misconduct.
Terminal dues: leave, overtime, house allowance, certificates of service
House allowance for 24 months and certificates of service granted; leave and overtime claims rejected
Leave dues were paid and leave taken, so the leave claim failed. Overtime was not proved as excess hours were not established as necessary and authorized. House allowance was payable only over the 2-year contract period at 15% of the basic salary, since pay slips described salaries as basic with no housing provision. Certificates of service ordered under Section 51.
Legal principles established
#- Employees who work in continuity over an aggregate period of over 6 years cannot be treated as casual employees; they are deemed regular employees
- An employer must still afford procedural fairness under Sections 41 and 45 of the Employment Act even where the employee has committed gross misconduct
- Refusal to obey reasonable and lawful instructions constitutes gross misconduct under Section 44(4) of the Employment Act
Court orders
#- 1.Declaration that termination was based on valid reason but flawed on procedure
- 2.Respondent to pay compensation for unfair termination to each Claimant at 1½ months' salary at Kshs. 15,000
- 3.Respondent to pay each Claimant arrears of house allowance over a period of 2 years, at Kshs. 36,000
- 4.Certificates of Service to issue to the Claimants
- 5.No order on the costs
- Jurisdiction invoked
- Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction; claims under the Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Otieno Onyango & 3 others v Jihan Freighters Limited [2018] KEELRC 443 (KLR)", Case Analysis (2018). Cause No. 396 of 2014 (consolidated with Cause No. 595 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/443/eng@2018-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.