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ELRCPartially AllowedCause No. 214 of 2015· [2018] KEELRC 1744 (KLR)

Yusuf A. K Busienei v Canken International Limited [2018] KEELRC 1744 (KLR)

Employment & Labour Relations Court of Kenya
12 June 2018
DMD. K. Njagi Marete
3,452 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing a worker without a fair hearing is unfair, even if he was hired as a casual labourer years earlier.

What this practically means

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Executive summary

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The claimant sued the respondent, a cargo handling company at an airport, alleging that his employment as a general labourer, which he said ran from 1st January 2008, was orally terminated on 20th May 2015 on grounds of absenteeism when he had in fact obtained permission to attend a burial. He claimed unfair termination contrary to sections 41, 43, 44 and 45 of the Employment Act and sought Kshs.311,316, a certificate of service, costs and interest. The respondent denied permanent employment, asserting casual, shift-based engagement at Kshs.300 per day. The court framed five issues: existence of employment, its status, fairness of termination, entitlement to relief, and costs. On status, it accepted continuous service of over eight years with monthly voucher payments and an annually renewable gate pass, applying section 37(1) of the Employment Act; the judgment, however, anomalously records a finding of 'casual employment' while reasoning to permanent employment. On fairness, the court found the stated reason - failure to attend a training held after the termination date - did not add up, and that there was no show cause letter received, no hearing and no notice, offending section 41. It declared the termination wrongful, unfair and unlawful, awarded one month's notice pay (Kshs.9,024) and six months' compensation (Kshs.54,144), totaling Kshs.63,168, with costs borne by the respondent and assessed at Kshs.60,000. The claims for severance, leave dues and a certificate of service were not addressed in the final orders.

Key legal issues

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01

Status of employment: casual or permanent

Holding

The court found that section 37(1) of the Employment Act applied to the claimant's eight-year continuous service; however, the judgment states it 'therefore find[s] a case of casual employment', which contradicts the claimant's success on unfair termination relief

Reasoning

The claimant worked continuously from January 2008 to May 2015, paid monthly by voucher, holding an annually renewable gate pass. Section 37(1) deems a casual engaged for a month or more to be employed on monthly terms. The respondent's issuance of suspension and show cause letters to a supposed casual remained unexplained. The claimant succeeded on a balance of probabilities.

p. 4
02

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was unfair both substantively and procedurally

Reasoning

The alleged reason - failure to attend a training held on 22nd May 2015 - did not add up as the claimant's employment had terminated on 20th May 2015. Procedurally, there was no notice to show cause, no invitation to a disciplinary hearing and no hearing, contrary to section 41 of the Employment Act. DW1 admitted no evidence that letters were handed to the claimant.

p. 5
03

Entitlement to relief

Holding

The claimant was entitled to relief: a declaration, one month's notice pay and six months' compensation

Reasoning

Having won on unlawful termination, the court exercised discretion under section 49 of the Employment Act principles to award six months' gross salary as compensation, plus notice pay, totalling Kshs.63,168.00, with costs to the respondent.

p. 5

Legal principles established

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  • Where a casual employee works continuously for the equivalent of not less than one month, the contract is by operation of law converted to monthly wages under section 37(1) of the Employment Act
  • Where an employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of employment is on the employer (section 10(7))
  • Termination without a hearing is procedurally unfair

Court orders

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  1. 1.A declaration that the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful
  2. 2.One (1) month's salary in lieu of notice of Kshs.9,024.00
  3. 3.Six (6) months' salary as compensation for unlawful termination of employment, being Kshs.9,024.00 x 6 = Kshs.54,144.00
  4. 4.Total award of Kshs.63,168.00
  5. 5.The costs of the claim shall be borne by the respondent
  6. 6.The costs of the claim assessed at Kshs.60,000.00

Authorities

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Legislation

  • Employment Actsection 41(1), 41(c), 44(4), 43(1), 45(2), 45(4)(b), 35(1)(c), 35(b), 35(5), 28(1), 51, 37(1) and (3), 8, 9(2), 10(7)
  • Labour Institution Actsection 15(c)

Cases cited (4)

  • Edward Isedia Mukasia vs. Eldo Supermaket Limited
  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    (2013) eKLR
  • Kabengi Mugo v Syngenta East Africa Limited
    Industrial Cause Number 1476 of 2011
  • Donald Odeke v Fidelity Security Limited
    Industrial Cause Number 1998 of 2011; [2011] LLR 277
Jurisdiction invoked
Employment and labour relations jurisdiction over a memorandum of claim for unfair termination under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Yusuf A. K Busienei v Canken International Limited [2018] KEELRC 1744 (KLR)", Case Analysis (2018). Cause No. 214 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1744/eng@2018-06-12

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