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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 2475 (KLR)

Emmanuel Murunga v Mini Bakeries (Nairobi) Limited [2018] KEELRC 2475 (KLR)

Employment and Labour Relations Court of Kenya
4 January 2018
3,589 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 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

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Executive summary

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Emmanuel Murunga claimed his employment by Mini Bakeries (NRB) Ltd as a dough-maker (later unilaterally re-designated a cleaner) was unfairly terminated. He alleged he was barred from work from 26th December 2013 after a bread-theft investigation that cleared him, arrested on 18th January 2014 on allegations of inciting a strike, blacklisted for gross misconduct on 30th January 2014 without notice, hearing or appeal, and sought declaration, notice pay, 12 months' compensation, 12 years' service pay, house allowance, costs and interests. The Respondent denied liability, asserting he was a casual who absconded after being pardoned with other cleaners. The court framed three issues: casual status, fairness of termination, and remedies. Applying section 37 of the Employment Act and following Silas Muthini v Haggaai Multi-Cargo Handling Services, it held that after over 12 years of service the Claimant's employment had automatically converted to monthly terms. Relying on the Respondent's own witness' admission that no evidence showed the Claimant was invited to a hearing, notified of charges, or told of the intention to terminate, the court found section 41's mandatory procedure breached and declared the termination unfair. On remedies, it awarded one month's notice pay, maximum compensation of 12 months' salary (Kshs. 198,912, computed on a monthly figure of Kshs. 16,576), and service pay of Kshs. 106,560 for 12 years at 15 days' pay per year, the Respondent having failed to prove any section 35(6) exclusion. House allowance was refused as daily rates are inclusive of it. The Claimant was awarded Kshs. 322,048 plus costs.

Key legal issues

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01

Whether the Claimant was a casual employee

Holding

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

Reasoning

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.

p. 6
02

Whether the termination was unfair

Holding

The termination was unfair because the mandatory procedure in section 41 of the Employment Act was not followed

Reasoning

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.

p. 6
03

Whether the Claimant is entitled to the remedies sought

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Declaration that the Claimant was not a casual employee but employed on monthly contracts
  2. 2.Declaration that the termination of the Claimant's employment was unfair
  3. 3.One month's salary in lieu of notice
  4. 4.Maximum compensation of 12 months' salary at Kshs. 198,912
  5. 5.Service pay of Kshs. 106,560 at 15 days' pay per year worked for 12 years
  6. 6.Total award of Kshs. 322,048 to the Claimant
  7. 7.Respondent to pay the Claimant's costs of the suit

Authorities

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Legislation

  • Employment Actsection 37 (Conversion of casual employment to term contract)
  • Employment Actsection 41 (Notification and hearing before termination on grounds of misconduct)
  • Employment Actsection 45(5)
  • Employment Actsection 49(1)
  • Employment Actsection 35(1), 35(5), 35(6)
  • Employment Actsection 42(1), 44(3), 44(4)
  • General Wages (Amendment) Order, 2013
  • Regulation of Wages (General) Order
  • Retirement Benefits Act
  • Employment Act, Cap. 226 (repealed)

Cases cited (6)

  • Silas Muthini v Haggaai Multi-Cargo Handling Services
    [2013] eKLR
  • International Planned Parenthood Federations v Pamela Ebot Arrey Effiom
  • Lilian Nyaboke Nyabiro v Wireless Innovations Nairobi Limited
  • Geoffrey Nyongesa Nyondo v Staright Line Co. Limited
    [2014] eKLR
  • Kenya Engineering Workers Union v Auto Spring Manufacturers Limited
    [2013] eKLR
  • Daniel Njuguna Muchiri v Sagar Bakery Limited
    [2013]
Jurisdiction invoked
Original jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (not expressly cited in the judgment)

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, "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.