Emmanuel Murunga v Mini Bakeries (Nairobi) Limited [2018] KEELRC 2475 (KLR)
The bottom line
#A Kenyan court ruled that a 'casual' worker with over 12 years of service was actually a monthly employee, entitling him to Kshs. 322,048 for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was a casual employee
The Claimant was not a casual employee; his employment had converted to a monthly contract by operation of section 37 of the Employment Act after more than 3 months of service
The Claimant testified he worked for 12 years as a casual, which the Respondent did not contest. Under section 37(1), where a casual employee works for a period equivalent to not less than one month continuously, or performs work not expected to be completed within three months, the contract is deemed to be one where wages are paid monthly. The court applied Silas Muthini v Haggaai Multi-Cargo Handling Services and held the conversion automatic.
Whether the termination was unfair
The termination was unfair because the mandatory procedure in section 41 of the Employment Act was not followed
RW1 Hassan admitted in cross-examination that there was no evidence the Claimant was invited to the disciplinary hearing, informed of the charges, or notified of the intention to terminate. Section 41 requires the employer to explain the reasons for termination and hear representations before dismissal on grounds of misconduct. Having been converted to a monthly employee, the Claimant was entitled to that procedure; its omission rendered the termination unfair.
Whether the Claimant is entitled to the remedies sought
The Claimant was awarded one month's notice pay, maximum 12 months' compensation (Kshs. 198,912) and service pay (Kshs. 106,560), but not house allowance
Under section 49(1) the unfairly terminated employee is entitled to notice; the court awarded one month rather than the three sought. Considering length of service and its casualization, the court awarded maximum compensation of 12 months' salary computed at Kshs. 592 per day translating to Kshs. 16,576 per month, daily rates being inclusive of house allowance. The Respondent failed to prove any section 35(6) exclusion, so service pay for 12 years at 15 days' pay per year was awarded.
Legal principles established
#- Casual employment automatically converts to a monthly contract where an employee works for the equivalent of not less than one month continuously or three months intermittently
- An employer must comply with the notification and hearing procedure in section 41 of the Employment Act before terminating employment on grounds of misconduct; failure renders the termination unfair
- An employer relying on exclusions to service pay under section 35(6) bears the burden of proving the employee falls within them
Court orders
#- 1.Declaration that the Claimant was not a casual employee but employed on monthly contracts
- 2.Declaration that the termination of the Claimant's employment was unfair
- 3.One month's salary in lieu of notice
- 4.Maximum compensation of 12 months' salary at Kshs. 198,912
- 5.Service pay of Kshs. 106,560 at 15 days' pay per year worked for 12 years
- 6.Total award of Kshs. 322,048 to the Claimant
- 7.Respondent to pay the Claimant's costs of the suit
- Jurisdiction invoked
- Original jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emmanuel Murunga v Mini Bakeries (Nairobi) Limited [2018] KEELRC 2475 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2475/eng@2018-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.