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ELRCPartially AllowedCause No. 1249 of 2014· [2018] KEELRC 2540 (KLR)

Kenya Union of Domestic, Hotels, Education Institutions, Hospitals and Allied Workers v Chairman B O M Muhuri Muchiri High School [2018] KEELRC 2540 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
18 May 2018
3,248 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled four school security guards were permanent monthly employees, not casuals, and their dismissal without notice or hearing was unfair.

What this practically means

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Executive summary

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The claimant union sued on behalf of four grievants, security guards terminated by the respondent school on 31st January/1st February 2012 after the school contracted a private security firm. The respondent asserted the grievants were casuals engaged on 1st September 2011 upon applications dated 4th August 2011, and that it was not party to the CBA between the union and the Ministry of Education. The court found pay slips for March and June 2011 showing the grievants were in employment long before the alleged September 2011 engagement, and unchallenged evidence of earlier employment dates. Five months of continuous service converted their status from casual to monthly employment by operation of section 37 of the Employment Act, 2007. The court held the respondent, as an education institution under the Education Act, was bound by the 1986 CBA and recognition between the union and the Ministry and could not extricate itself from it. Termination without notice, reasons or hearing, and without declaring redundancy or paying terminal dues, was procedurally and substantively unfair contrary to sections 35, 41, 43 and 45. Applying Krystalline Salt and Kenya County Government Workers' Union, the court entered judgment for the claimant with a declaration of unfair termination, awarding each grievant notice pay and compensation of ten months' gross wage, plus quantified claims for leave, off days, public holidays, overtime and house allowance, with costs to the claimant. The awards as printed swap the names of the 3rd and 4th grievants.

Key legal issues

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01

Employment status of the grievants and the casual-versus-monthly-employee conversion under section 37

Holding

The grievants were not casual employees; their employment predated the 4th August 2011 applications, and five months' continuous service had converted their contracts to monthly terms by operation of section 37 of the Employment Act, 2007

Reasoning

The court found pay slips for March 2011, June 2011 and January 2012 issued by the respondent, predating the alleged 1st September 2011 engagement. This evidence was unchallenged in a material way. Applying section 37, five months of continuous service meant the casual status had ceased by operation of law, entitling the grievants to statutory rights. It relied on Krystalline Salt and the Kenya County Government Workers' Union line of authority defining casual employment as engagement of not more than 24 hours at a time with daily payment.

p. 4
02

Whether the respondent was bound by the CBA between the union and the Ministry of Education

Holding

Yes; the respondent, being an education institution under the Education Act, fell within the recognition and CBA of 18th March 1986 and could not extricate itself from it

Reasoning

The court held that the CBA and recognition granted the union the right to represent employees in the sector, and that the respondent, as an institution under the Ministry's governance for whose employees terms were negotiated, was bound. Section 48 of the Labour Relations Act, 2007 mandates union dues deductions where recognition exists, and unionisation of the grievants was not challenged.

p. 3
03

Fairness of the termination

Holding

The termination was procedurally and substantively unfair contrary to sections 41, 43 and 45 of the Employment Act; no notice was given, no hearing accorded, and no redundancy declared

Reasoning

The respondent terminated on grounds of redundancy by contracting a private security firm but did not issue notice under section 35, accord hearings under section 41, or follow redundancy procedure. The defence that the grievants were casuals was a misapplication of the law given the section 37 conversion. Compensation of 10 months gross wage per grievant was awarded under section 49, noting the absence of procedural justice and that the respondent could have retained the grievants but opted to dismiss them.

p. 5
04

Claims for leave, off days, public holidays, overtime and house allowance

Holding

These claims were justified and payable, the grievants' employment having become protected under sections 27, 28 and 37(2) of the Employment Act and the applicable CBA

Reasoning

Having found the grievants were wrongly treated as casuals and denied statutory rights, the court held the quantified claims for untaken leave, rest days, public holidays, overtime and house allowance due under sections 27(2), 28 and 37(2) of the Employment Act and the CBA applicable to them.

p. 5

Legal principles established

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  • Casual employment entails engagement for a period not longer than 24 hours at a time with payment made at the end of each day; where a casual employee works for one month or more of continuous working days, the contract is deemed to be one where wages are paid monthly under section 37 of the Employment Act
  • An educational institution falls within the purview of a recognition agreement and CBA entered into between a union and the Ministry of Education and cannot claim it was not party to the CBA
  • Termination without notice, reasons or hearing is procedurally and substantively unfair contrary to section 45 of the Employment Act; where redundancy is the true reason, the employer must declare redundancy and pay terminal dues

Court orders

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  1. 1.Judgment entered for the claimant with a declaration that termination of employment was unfair
  2. 2.1st grievant Francis Kinyua awarded: one month notice pay Kshs.7,721.00; 5 years untaken leave days Kshs.38,605.00; overtime 575 hours Kshs.18,400.00; compensation Kshs.77,210.00
  3. 3.2nd grievant Michael Gatimu Ndirangu awarded: one month notice pay Kshs.8,000.00; unpaid house allowance 20 months Kshs.60,000.00; 84 off days Kshs.22,399.00; compensation Kshs.80,000.00
  4. 4.3rd grievant (named George Murunga in the orders) awarded: one month notice pay Kshs.10,721.00; 33 public holidays Kshs.16,962.00; 575 overtime hours Kshs.18,400.00; 3 years untaken leave days Kshs.23,163.00; compensation Kshs.100,721.00
  5. 5.4th grievant (named David Mureithi Njeru in the orders) awarded: one month notice pay Kshs.8,000.00; 20 months house allowance Kshs.60,000.00; 84 off days Kshs.22,399.60; compensation Kshs.80,000.00
  6. 6.Claimant awarded costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Relations Act, 2007 (unfair termination dispute reported to the Minister)

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, "Kenya Union of Domestic, Hotels, Education Institutions, Hospitals and Allied Workers v Chairman B O M Muhuri Muchiri High School [2018] KEELRC 2540 (KLR)", Case Analysis (2018). Cause No. 1249 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2540/eng@2018-05-18

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