Christopher Baraza Wasike v Pemco Agencies Limited (Cause 651 of 2014) (Employment and Labour) [2018] KEELRC 1120 (KLR)
The bottom line
#Kenya's Employment Court ruled a casual labourer who worked over two years became a permanent employee entitled to fair redundancy procedures and compensation.
What this practically means
#Executive summary
#Key legal issues
#Existence and nature of the employment relationship
Although there was no written contract and the respondent alleged the claimant was a casual labourer, the employment relationship exceeding three months required a written contract under Section 9(1) of the Employment Act
The respondent admitted employing the claimant from October 2011 and paying him every two weeks until May 2013, an engagement exceeding two years. Section 9(1) requires contracts of service of three months or more to be in writing, and Section 9(2) places the duty to reduce the contract to writing on the employer. The continuous engagement of over two years brought the claimant within the statutory protections.
Conversion of casual employment to permanent employment
By operation of Section 37 of the Employment Act, the claimant's continuous casual engagement of over two years converted him into a permanent employee
Section 37(1) deems a casual employee who works continuously for the equivalent of not less than one month to be employed on monthly wages. Section 37(3) entitles an employee whose contract is so converted, and who works continuously for two months or more, to the terms and conditions he would have enjoyed under the Act. The claimant therefore became a permanent worker despite the respondent's contrary assumption.
Whether the termination was a lawful redundancy
The termination was a redundancy, but the employer failed to comply with Section 40 of the Employment Act, rendering the dismissal unfair and unjustified
Closure of the Ramata Green site meant the claimant's services were superfluous, falling within the statutory definition of redundancy. Section 40 mandates notice to the union and labour officer at least one month before termination, payment of one month's notice or wages in lieu, and severance pay at not less than fifteen days' pay per completed year of service. None of these steps was taken, so the dismissal was unfair.
Legal principles established
#- A casual employee who works for a period equivalent to not less than one month, or whose work cannot reasonably be completed within three months, is deemed under Section 37 of the Employment Act to be employed on monthly terms and entitled to the Act's protections
- An employee on permanent terms cannot be terminated for whatever reason without following due process, and termination on account of closure of a site constitutes redundancy requiring compliance with Section 40 of the Employment Act
Court orders
#- 1.1 month salary in lieu of notice of Kshs. 16,800
- 2.Severance pay at the rate of 15 days pay for each year worked, computed as 16,800 x ½ x 2 = Kshs. 16,000
- 3.8 months salary as damages for unfair redundancy, computed as 16,800 x 8 = Kshs. 134,400, total award of Kshs. 168,000
- 4.Issuance of a certificate of service to the claimant
- 5.The respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Oyoo v Prideinn Hotels & Investments Limited (Cause 1029 of 2016) [2022] KEELRC 1319 (KLR)[2022] KEELRC 1319 (KLR)21 Jul 2022
- Arasa & another v Benori Agencies and Services Limited. (Cause 242 of 2017) [2022] KEELRC 116 (KLR)[2022] KEELRC 116 (KLR)17 May 2022applied
- Sylvester Musangi Mutua v Wire Products Limited [2021] KEELRC 938 (KLR)[2021] KEELRC 938 (KLR)24 Sept 2021
Cite this brief
#Cite this brief
Caselaw, "Christopher Baraza Wasike v Pemco Agencies Limited (Cause 651 of 2014) (Employment and Labour) [2018] KEELRC 1120 (KLR)", Case Analysis (2018). Cause No. 651 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1120/eng@2018-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.