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ELRCDismissedMemorandum of Claim dated 15th December 2014· [2018] KEELRC 2147 (KLR)

Job Ogoti Oriri v Basco Products (K) Limited [2018] KEELRC 2147 (KLR)

Employment and Labour Relations Court

13 April 2018

LNLINNET NDOLO OMONESMUS MAKAU

976 words in judgment

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The bottom line

Kenya's Employment Court confirmed that when a fixed-term contract simply expires, the employer owes no notice, reasons, or compensation for choosing not to renew it.

What this practically means

Executive summary

The Claimant, employed by the Respondent from 13th September 2011 as a Machine Operator earning Kshs. 14,693 per month, claimed unlawful and unfair termination of employment arising from events of 21st July 2013, when after a one week off he was told to go home and await recall, and on 2nd August 2013 was informed there was no work for him. He sought notice pay, July 2013 salary, leave pay for three years, service pay at 15 days per completed year, and 12 months' salary in compensation. The Respondent maintained that the Claimant was engaged on intermittently renewed three-month fixed term contracts, the last running from 22nd April 2013 to 21st July 2013; that the contract simply lapsed by effluxion of time with full terminal dues paid, including payment in lieu of leave; and that the Claimant's NSSF contributions disentitled him to service pay under Section 35(6)(d) of the Employment Act, 2007. The court framed two issues: whether the termination was lawful and fair, and entitlement to remedies. Applying the settled principle that fixed term contracts carry no automatic renewal and non-renewal requires neither notice nor reason save where the employer circumvents accrued obligations, the court held the Claimant had served the full term of his fixed term contract and no unfair termination claim lay. Each head of claim was found unproved or unmerited, and the entire claim was dismissed with each party bearing its own costs.

Key legal issues

Whether the termination of the Claimant's employment was lawful and fair

Holding

The Claimant's employment ended by lapse of a fixed term contract; non-renewal is not termination and no claim for unfair termination lies

Reasoning

The Claimant's last contract commenced on 22nd April 2013 and was to terminate on 21st July 2013, and was titled a contractual employment contract for a specific period, i.e. a fixed term contract. The court stated the settled law that fixed term contracts do not carry automatic renewal and an employer need not give notice or reason for non-renewal, the only exception being attempts to circumvent accrued legal obligations. No such circumvention was shown, so the Claimant having served the full term, no unfair termination claim lies.

p. 2

Whether the Claimant is entitled to the remedies sought

Holding

None of the remedies sought was available; the entire claim was dismissed

Reasoning

Having found no unfair termination, notice pay and 12 months' compensation fell away. Salary for July 2013 was proved paid. Leave clearance forms showed payment in lieu of leave for each contract. The Claimant being a contributing NSSF member, Section 35(6)(d) of the Employment Act barred service pay. Consequently the entire claim failed and each party was to bear its own costs.

p. 3

Legal principles established

Fixed term contracts do not carry automatic renewal, and the employer is not obligated to give notice or reason for non-renewal, except where the employer attempts to circumvent accrued legal obligations

Court orders

1.The Claimant's entire claim fails and is dismissed
2.Each party will bear their own costs

Authorities

Legislation

Employment Act, 2007Section 35(6)(d)

Cases cited (1)

Margaret A. Achieng v National Water Conservation Corporation
[2014] eKLR

Jurisdiction invoked: Employment and labour relations jurisdiction under Article 162(2) of the Constitution (court identified as the Employment and Labour Relations Court; specific enabling provision not cited in the judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Job Ogoti Oriri v Basco Products (K) Limited [2018] KEELRC 2147 (KLR)", Case Analysis (2018). Memorandum of Claim dated 15th December 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2147/eng@2018-04-13

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