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ELRCAllowedCause Number 1992 of 2014· [2018] KEELRC 2283 (KLR)

Nicholas Wambua Ngunga v Kitui Cottages & another [2018] KEELRC 2283 (KLR)

Employment and Labour Relations Court of Kenya
16 February 2018
ANAbuodha J. N.
903 words in judgment
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The bottom line

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A Kenyan court ruled that casual workers employed for over a month become regular employees entitled to notice, a hearing, and compensation when unfairly terminated.

What this practically means

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Executive summary

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The claimant sued the respondent alleging he was employed on 1st October 2012 as a guest attendant/cook at Kshs 18,000 per month exclusive of house allowance, and that on 4th May 2014 the respondent terminated his services without notice, without a letter to show cause, and without paying terminal dues. The respondent's defence was that the claimant was a casual employee engaged only from 1st October 2012 to 7th January 2013 during peak seasons, and that his termination was lawful. The respondent's witness admitted he had no records in court to support the asserted casual engagement and exit dates. The claimant testified he was paid monthly into his bank, worked 6am to 6pm, never went on leave, and received no house allowance. The claimant relied on a letter dated 7th January 2013 addressed to NHIF Kitui Branch in which the respondent confirmed the claimant's employment from 1st October 2012. The court framed the sole issue as whether the claimant was a casual employee and, if not, the proper procedure for separation. Applying section 37 of the Employment Act, the court held that a casual employee engaged continuously or in aggregate for one month or more is deemed a regular employee entitled to the notice, reasons and procedures of section 35. It found the respondent had treated the claimant as terminable at will without notice, reasons or a hearing, and that the termination was unfair in both reason and procedure. The court awarded one month's salary in lieu of notice, pro-rata leave, gratuity at 15 days' pay per complete year, eight months' salary as compensation for unfair termination, and costs, all monetary awards subject to taxes and statutory deductions.

Key legal issues

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01

Status of the claimant - casual or regular employee

Holding

The court found the claimant was not a casual employee entitled to be terminated at will; given his duration of service he attracted section 37 protections, and the termination was unfair in both reason and procedure.

Reasoning

The respondent alleged the claimant was a casual worker employed only three months, but produced no records to substantiate this. The claimant's testimony of monthly banked salary and a letter dated 7th January 2013 to NHIF confirming employment from 1st October 2012 contradicted the defence. The respondent assumed a casual employee could be dismissed without notice or reason, an assumption untenable under the current Employment Act regime.

p. 2
02

Proper procedure for separation

Holding

Even where the employer no longer needs an employee's services, fairness requires that the employee be informed of the reasons and given an opportunity to respond before termination.

Reasoning

The court emphasised that the employee need not agree with the reasons but must be heard before termination. There was no record the claimant was given notice, reasons, or a hearing; the respondent treated him as terminable at will. Both the reason for termination and the procedure were therefore unfair.

p. 2

Legal principles established

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  • Where a casual employee is hired for a continuous or aggregate period of one month or more, he is deemed a regular employee entitled to termination procedures and entitlements of a permanent employee under section 35 of the Employment Act.
  • An employer may terminate an employee whose services it no longer needs, but must inform the employee of the decision and afford him an opportunity to be heard before termination.

Court orders

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  1. 1.One month's salary in lieu of notice (Kshs 18,000)
  2. 2.Pro-rata leave (Kshs 34,000)
  3. 3.Gratuity at the rate of 15 days pay for each complete year of service (Kshs 9,000)
  4. 4.Eight months' salary as compensation for unfair termination of service (Kshs 144,000)
  5. 5.Costs of the suit to the claimant
  6. 6.Items (a), (b), (c) and (d) to be subject to taxes and statutory deductions

Authorities

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Legislation

  • Employment Actsection 37
  • Employment Actsection 35
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, section 37 invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nicholas Wambua Ngunga v Kitui Cottages & another [2018] KEELRC 2283 (KLR)", Case Analysis (2018). Cause Number 1992 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2283/eng@2018-02-16

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