Martin Wamae Wangu & 295 others v Bidco Africa Ltd [2018] KEELRC 2528 (KLR)
The bottom line
#Kenya's Employment Court ruled that long-serving casual workers at Bidco Africa automatically became regular employees entitled to notice pay, leave pay, and costs.
What this practically means
#Executive summary
#Key legal issues
#Conversion of casual employment to monthly/permanent employment
The claimants were deemed employees of the respondent under section 37(1) and (3) of the Employment Act, terminable only in accordance with the Act
It was common ground that both parties wanted to end the casual employee status. The claimants had worked for the respondent for various durations and were registered with NSSF. Under section 37, casuals working one month or more are deemed monthly employees, and after two continuous months are entitled to the full terms of service they would have had absent casual engagement. The court declared them employees accordingly.
Entitlement to service pay
The claim for service pay failed because the claimants were registered with NSSF
The claimants were registered with NSSF and their dues were regularly remitted to the Fund. Section 35(6) of the Employment Act excludes employees registered with NSSF or other pension or provident funds from entitlement to service pay. The court therefore found the service pay claim unsustainable.
Unfair termination / lockout
The court declined to make a finding on unfair termination, instead compensating the claimants with notice pay and leave
The claimants admitted refusing to sign new contracts unless their previous service was clarified, and their prolonged casual status caused their unrest; the respondent's new policy of ending casualisation was in principle aligned with what the claimants wanted. Given these circumstances and the passage of time, the court opted not to determine unfair termination and instead granted compensatory orders.
Legal principles established
#- A casual employee who has worked for an aggregate period of not less than one month is deemed an employee whose wages are payable monthly
- A casual employee whose contract has been converted under section 37(1) and who has worked continuously for two months or more is entitled to the terms and conditions of service he would have enjoyed under the Act had he not been employed as a casual
- Employees registered with NSSF or another pension or provident fund are not entitled to service pay under section 35(6) of the Employment Act
Court orders
#- 1.Declaration that the claimants are employees of the respondent by virtue of section 37(1) and (3) of the Employment Act whose services could only be terminated in accordance with the Employment Act procedure
- 2.One month's salary in lieu of notice on termination of service for each claimant
- 3.One month's salary in lieu of leave for each complete year of service from 2009 to 2013 for those in service during this period
- 4.Counsel for the parties to liaise with their respective clients for computation of orders (a) and (b) and return to Court on 11/10/2018 for recording of final orders
- 5.Costs of the suit to the claimants
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; claim presented under Cause Number 1936 of 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Wamae Wangu & 295 others v Bidco Africa Ltd [2018] KEELRC 2528 (KLR)", Case Analysis (2018). Cause Number 1936 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2528/eng@2018-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.