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ELRCPartially AllowedCause No. 1127 of 2014· [2018] KEELRC 2525 (KLR)

Caroline Wairimu & 61 others v Emco Billets and Steel Limited [2018] KEELRC 2525 (KLR)

Employment and Labour Relations Court
10 December 2018
HWHellen S. Wasilwa
2,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that 'casual' workers paid monthly for over a year are permanent employees, and companies must follow due process before any dismissal.

What this practically means

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Executive summary

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Sixty-two claimants sued Emco Billets and Steel Limited for unfair summary dismissal, alleging that on 8 May 2013 the Respondent posted a notice at the gate terminating all employees' services without notice or hearing, after which police prevented them from re-entering the premises. They sought declarations, notice pay, severance, 12 months' compensation, certificates of service and unpaid leave. The Respondent denied dismissing them, asserting the Claimants were casuals who absconded on 9 May 2013 after blocking the gate, and that their positions were advertised after a return-to-work notice went unheeded. CW1 testified that the Respondent remitted NSSF, NHIF and monthly salaries to their bank accounts, undermining the casual label. The court framed four issues and held, first, that under Section 37(1) of the Employment Act, Claimants who worked continuously for over a year and were paid monthly were not casuals but permanent and pensionable employees. Secondly, even if they absconded, the Respondent was bound to follow Section 41 due process; no show-cause notice was issued and no hearing held, and a notice pinned to a board could not be seen by allegedly absent employees - the Claimants were condemned unheard. The dismissal was therefore unfair. The court awarded each Claimant one month's salary in lieu of notice and six months' compensation (less than the 12 months sought), totalling Kshs. 6,191,234 per Addendum 'A', with costs and interest from the date of judgment. Severance pay, the discrimination declaration, certificates of service and unpaid leave claims were not granted.

Key legal issues

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01

Status of the Claimants as employees

Holding

Claimants were not casual employees but permanent and pensionable employees

Reasoning

Bank statements, NHIF and NSSF remittances showed monthly payment of salaries by the Respondent for periods of 1.5 to 5 years. Section 37(1) of the Employment Act deems contracts of casuals working a month or more to be monthly contracts. The Respondent produced no contradicting evidence.

p. 7
02

Whether Claimants were dismissed or absconded

Holding

Claimants were dismissed unfairly

Reasoning

The Respondent claimed the Claimants absconded on 9 May 2013, but the Claimants testified they were locked out by police on 8 May 2013 and barred from re-entering. Even if they absconded, the Respondent was obliged to follow due process.

p. 7
03

Due process under Section 41 Employment Act

Holding

Dismissal was procedurally unfair; Claimants were condemned unheard

Reasoning

No notice to show cause was issued and no disciplinary hearing conducted. The notice of 14 May pinned on the noticeboard could not be seen by employees alleged to have absconded, and did not satisfy Section 41 requirements.

p. 7

Legal principles established

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  • An employee engaged as a casual who works continuously for not less than one month, or performs work exceeding three months, is deemed to be employed on monthly terms under Section 37(1) of the Employment Act.
  • Dismissal for absconding duty still requires due process under Section 41 of the Employment Act, including notice to show cause and a disciplinary hearing.

Court orders

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  1. 1.Respondent to pay each Claimant 1 month's salary in lieu of notice
  2. 2.Respondent to pay each Claimant 6 months' salary as compensation for unfair termination, computed per Addendum 'A'
  3. 3.Grand total of Kshs. 6,191,234 to be paid to the Claimants per the schedule
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 37(1)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 41
  • Employment ActSection 51
  • Labour Institutions Act 2007Section 15(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act (unfair termination claim under Cause jurisdiction)

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, "Caroline Wairimu & 61 others v Emco Billets and Steel Limited [2018] KEELRC 2525 (KLR)", Case Analysis (2018). Cause No. 1127 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2525/eng@2018-12-10

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