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ELRCPartially AllowedCause 1099 of 2015· [2019] KEELRC 402 (KLR)

Ibrahim Simiyu Hassan v Tarpo Industries Limited [2019] KEELRC 402 (KLR)

Employment and Labour Relations Court
15 October 2019
HWHellen S. Wasilwa
1,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that workers on repeated short contracts for years are permanent employees, and firing them without reasons is unfair.

What this practically means

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Executive summary

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The Claimant, Ibrahim Simiyu Hassan, sued Tarpo Industries Limited alleging employment from 2009 until June 2013 at Kshs. 415 per day and wrongful dismissal without reasons or an opportunity to be heard. He sought a declaration of illegality, severance pay, terminal benefits, one month in lieu of notice, unpaid leave, salary underpayment, transport allowance, gratuity, general damages, costs and interest, totalling about Kshs. 258,960 as particularised. The Respondent denied long employment, asserting the Claimant was on a three-month contract from 23rd September 2013 expiring 14th December 2013 (following an earlier contract from 8th April to 29th June 2013), and thus was not terminated and not entitled to notice or damages. The matter was determined on written submissions. The Claimant relied on section 41 of the Employment Act and the Respondent's failure to produce records under section 74; the Respondent relied on the contract terms and on authority that an employer paying NSSF need not pay service pay. The Court noted the Claimant's NHIF statement showing service since 2009 and found the serial three-month contracts could not be casual. Applying section 37 of the Employment Act, the Court held the Claimant, having worked close to four years, was permanent and pensionable, and his terms had been unlawfully converted to contract. His termination without reasons and without due process under sections 41 and 43 was found unfair and unjustified. The Court awarded one month's salary in lieu of notice (Kshs. 29,880) and compensation of ten months' salary (Kshs. 298,800), with costs and interest at court rates. Other heads of the claim were not granted.

Key legal issues

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01

Nature of the Claimant's employment

Holding

The Claimant, having worked for the Respondent for close to four years, was not a casual employee but a permanent and pensionable employee whose terms were unlawfully converted to contracts

Reasoning

The Respondent produced two three-month contracts (8.4.2013–29.6.2013 and 23.9.2013–14.12.2013) signed by the Claimant, but the Claimant's NHIF statement showed service since 2009 with the Respondent as employer. Applying section 37 of the Employment Act, the Court held that contracts exceeding three months cannot be casual, and that serial short contracts over close to four years converted the employee to permanent and pensionable terms.

p. 2
02

Fairness of the termination

Holding

The termination was unfair and unjustified as it was done without reasons and without following the mandatory procedure in section 41 of the Employment Act

Reasoning

The Court found the termination was subject to section 41 (procedure) and section 43 (valid reasons) of the Employment Act. Since the Claimant was terminated without any reason being given and without due process, and following the illegality of converting permanent and pensionable terms to contract terms, the termination could not stand.

p. 2

Legal principles established

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  • A casual employee who works for a period equivalent to not less than one month, or whose work cannot reasonably be completed within three months, is deemed to be employed on monthly terms under section 35(1)(c) of the Employment Act
  • Any contract in excess of three months cannot be casual in nature; an employee engaged for close to four years is not a casual but a permanent employee

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs. 29,880
  2. 2.Compensation for unlawful and unjustified termination equivalent to 10 months' salary of Kshs. 298,800
  3. 3.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 41
  • Employment Actsection 74
  • Employment Actsections 35 and 36
  • Employment Actsection 28(1)(5)
  • Employment Actsection 35(5)
  • Employment Actsection 49(1)(c)
  • Employment Actsection 37(1)(a) and (b)
  • Employment Actsection 43
  • Employment Actsection 35(1)(c)

Cases cited (3)

  • Victor Ouma Otieno v Carol Extreme Limited
    [2017] eKLR
  • Nicholas Lihugu Bwumira v Colette Gurshi t/a Wild Earth Wellness Centre Limited
    [2016] eKLR
  • Bamburi Cement Ltd v Farid Aboud Mohammed
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (employment dispute under the Employment Act)

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, "Ibrahim Simiyu Hassan v Tarpo Industries Limited [2019] KEELRC 402 (KLR)", Case Analysis (2019). Cause 1099 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/402/eng@2019-10-15

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