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ELRCPartially AllowedCause No 602 of 2016· [2018] KEELRC 2248 (KLR)

Paul Ochieng’ Agola v Gateway Marine Services Limited [2018] KEELRC 2248 (KLR)

Employment and Labour Relations Court
20 March 2018
JRJames Rika
1,840 words in judgment
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The bottom line

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A Mombasa court ruled a machine operator dismissed after four years was an employee, not a contractor, and won compensation for unfair termination.

What this practically means

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Executive summary

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The Claimant, engaged as a machine/excavation operator from 2012, was summarily dismissed on 19th March 2016 and sued for unfair termination, claiming notice pay, compensation, leave pay, house allowance, a certificate of service, costs and interest. The Respondent denied an employment relationship, asserting the Claimant was an independent contractor paid per job, who also worked for other companies, and relied on job cards and payment-per-job to support this. The parties agreed the Claim be determined on the record. The Court framed three issues: employment status, fairness of termination, and remedies. Applying principles from Fredrick Byakika, Maurice Oduor Okech and Kenneth Kimani Mburu, the Court held that the unsigned, incomplete job cards were unpersuasive; the Managing Director's demand-letter reply described the Claimant as a Casual Employee paid a daily wage, a description inconsistent with independent contracting; and the 2015 Leave Application Form, which the Respondent failed to disprove, showed an employment benefit. The Court found an Employer-Employee relationship under Section 2 of the Employment Act, and, the Claimant having served four years, held he was a Regular Employee under Section 37. The Respondent failed to prove valid reasons or a fair procedure under Sections 41, 43 and 45, so termination was unfair. Notice pay of Kshs. 24,000 and five months' compensation of Kshs. 120,000 were awarded with a certificate of service and interest at 14% per annum; the house allowance and unparticularised leave claims were rejected; no order was made on costs. Judgment delivered at Mombasa on 20th March 2018 by James Rika, Judge.

Key legal issues

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01

Employment status: employee or independent contractor

Holding

The Claimant was an Employee within Section 2 of the Employment Act, 2007; no independent contract existed.

Reasoning

The Court examined the Workforce Monitoring Report, unsigned and incomplete Job Cards, the MD's letter describing the Claimant as a Casual Employee paid a daily wage, and an authentic Leave Application Form showing an employment benefit. No oral or documentary proof of an independent contract existed; the documents pointed to an Employer-Employee relationship.

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02

Fairness of termination

Holding

Termination was unfair under Sections 41, 43 and 45 of the Employment Act.

Reasoning

The Respondent failed to prove valid reasons for termination and did not subject the Claimant to a fair process before termination as required by Sections 41, 43 and 45 of the Employment Act. Having served from 2012 to 2015, the Claimant merited treatment as a Regular Employee under Section 37 with all attendant protections.

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Remedies

Holding

One month's notice pay and five months' salary compensation granted; house allowance and leave claims rejected for lack of proof.

Reasoning

The Court awarded notice pay and compensation for unfair termination but declined the unparticularised leave claim and unsupported house allowance claim, and ordered a certificate of service with interest.

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Legal principles established

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  • An Independent Contractor performs work for another person according to his own processes and methods
  • Inclusion in a workforce monitoring report does not conclusively establish employment
  • An employee who has worked for four years cannot be treated as a casual employee

Court orders

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  1. 1.Declaration that termination of the Claimant's contract was unfair
  2. 2.Respondent to pay 1 month salary in lieu of notice at Kshs. 24,000 and equivalent of 5 months' salary in compensation for unfair termination at Kshs. 120,000, total Kshs. 144,000
  3. 3.Certificate of Service to issue
  4. 4.Interest at 14% per annum from the date of Judgment till payment in full
  5. 5.No order on the costs

Authorities

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Legislation

  • Employment Act, 2007Sections 2, 37, 41, 43, 45

Cases cited (3)

  • Fredrick Byakika v. Mutiso Menezes International
    [2016] e-KLR
  • Maurice Oduor Okech v. The Chequered Flag Limited
    [2011] e-KLR
  • Kenneth Kimani Mburu & Another v. Kibe Muigai Holdings Limited
    [2014] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction 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 (4)

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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, "Paul Ochieng’ Agola v Gateway Marine Services Limited [2018] KEELRC 2248 (KLR)", Case Analysis (2018). Cause No 602 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2248/eng@2018-03-20

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