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ELRCPartially AllowedCause No 262 of 2015· [2019] KEELRC 657 (KLR)

Wilson Mukuha & 11 others v Pabari Enterprises Limited [2019] KEELRC 657 (KLR)

Employment and Labour Relations Court
7 October 2019
MNMathews N. Nduma
3,210 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This first-instance judgment of the Employment and Labour Relations Court, delivered by Mathews N. Nduma, Judge, on 7 October 2019, disposed of twelve consolidated claims by hardware workers (loaders) against Pabari's Ideal Hardware. The claimants, engaged on daily wages of Kshs. 470 on successive three- and six-month contracts, some for up to 15 years, testified through Robert Otieno and Wilson Mukuha that they were summarily dismissed in March 2015 after the proprietor, Jaden Pabari, discovered they had joined the Kenya Union of Commercial Food and Allied Workers. The respondent contended that the claimants were casuals who refused to sign new contracts and walked away. The court framed two issues: whether the terminations were unlawful and unfair, and entitlement to relief. Applying Section 37 of the Employment Act, the court held that the long-serving casuals were deemed monthly employees entitled to the Act's minimum conditions, including notice, leave, NSSF and NHIF registration. RW1's inability to explain why all twelve stopped work on the same day, and the absence of expired contracts, defeated the respondent's case. The court found the dismissals lacked valid reason and fair procedure, violated Sections 35, 36, 41, 43, 45 and 46 of the Employment Act and Sections 4 and 5 of the Labour Relations Act, and constituted unfair labour practice under Article 41(1) of the Constitution. Each claimant received compensation of four to twelve months' salary under Section 49, one month's notice pay of Kshs. 11,280, and three years' leave pay of Kshs. 33,840, with interest at court rates and costs. Leave claims beyond three years were disallowed as time-barred. The suits were allowed in full.

Key legal issues

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01

Whether the twelve claimants were summarily dismissed or walked away after refusing new contracts

Holding

The claimants proved on a balance of probabilities that they were summarily dismissed for joining a union; the respondent failed to rebut this evidence.

Reasoning

CW1 gave consistent testimony that Mr. Pabari discovered the union membership in March 2015, summoned all twelve and dismissed them without charge, notice or disciplinary hearing. RW1 could not explain why all twelve stopped working on the same day if contracts had simply expired, and produced no contracts expiring in March 2015. His admission that a 34-year business treated workers of up to 11 years as casuals corroborated the claimants' account.

p. 3
02

Whether casuals of long standing were converted to protected employees under Section 37 of the Employment Act

Holding

Employees working continuously for a month or more are deemed to be on monthly contracts and entitled to the Part V basic minimum conditions, including leave, notice, NSSF and NHIF cover.

Reasoning

The court invoked Section 37 as read with Section 35(1)(c): casuals engaged on terms aggregating one month or more are deemed monthly employees entitled to 28 days' notice, 21 days' annual leave under Sections 27 and 28, social security, medical cover and housing. Termination must comply with Sections 35, 36, 41, 43, 45 and 46. The respondent's contracts provided no leave, and the claimants were not registered with NSSF or NHIF.

p. 3
03

Whether the dismissals violated constitutional fair labour practices

Holding

The dismissals and the policy of never offering permanent terms to long-serving workers amounted to unfair labour practice under Article 41(1) of the Constitution and breached Sections 4 and 5 of the Labour Relations Act.

Reasoning

Section 46(c) of the Employment Act prohibits dismissal for union membership; Sections 4(1) and 5(1) of the Labour Relations Act guarantee the right to join a union and prohibit discrimination for exercising that right. Treating employees of over 11 years as casuals under a company policy of never offering permanent terms was itself an unfair labour practice violating the constitutional right to fair labour practices.

p. 3
04

What remedies flow from the unlawful and unfair dismissals

Holding

Compensation under Section 49(1)(c) and (4), one month's notice pay and leave pay for three years, with interest and costs.

Reasoning

Having found the dismissals unlawful and unfair, the court applied Section 49 factors: length of service, victimisation for joining a union as an aggravating factor, and the claimants' non-contribution to the dismissal. Compensation ranged from four to twelve months' salary. Notice pay of one month and three years' leave pay were awarded to all; older leave claims were statute-barred.

p. 4

Legal principles established

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  • Casual employees engaged continuously for periods aggregating to one month or more are by operation of Section 37 of the Employment Act deemed to be employed on monthly wages and entitled to the statutory minimum employment conditions.
  • Dismissal of an employee for joining a trade union of their choice is an unfair labour practice under Article 41(1) of the Constitution.
  • It is not for an employer to choose a union for its employees; the employer recognises the union the employees choose.

Court orders

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  1. 1.Declaration that the summary dismissal of the twelve claimants was unlawful and unfair
  2. 2.Compensation under Section 49(1)(c) and (4) of the Employment Act: Samuel Otieno Mbeche Kshs. 112,800 (10 months); Robert Otieno Omer Kshs. 169,200 (12 months, maximum); Fredrick Owino Oywer Kshs. 101,520 (9 months); Wilson Mukuha Kshs. 112,800 (10 months); Philip Kidula Evelia Kshs. 135,360 (12 months); Moses Obwao Boge Kshs. 112,800 (10 months); Timothy Vijedi Kshs. 124,080 (11 months); Seth Jotham Anamanda Kshs. 124,080 (11 months); Charles Ochieng Otieno Kshs. 90,240 (8 months); Lukas Odongo Oliyo Kshs. 124,080 (11 months); Wycliffe Ndeda Boge Kshs. 112,800 (10 months); Walter Odongo Shikoyo Kshs. 45,120 (4 months)
  3. 3.One month salary in lieu of notice of Kshs. 11,280 each to all twelve claimants
  4. 4.Payment in lieu of three years' untaken annual leave of Kshs. 33,840 each to all claimants
  5. 5.Interest at court rates from the date of judgment until payment in full
  6. 6.Costs of the suit to the claimants
  7. 7.All twelve files to be placed together and the claimants summoned for delivery of the judgment

Authorities

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Legislation

  • Employment ActSection 37(1)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 27
  • Employment ActSection 28
  • Employment ActSection 36
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 46 (including 46(c))
  • Employment ActSection 49(1)(c) and (4)
  • Labour Relations Act, 2007Section 4(1)
  • Labour Relations Act, 2007Section 5(1)
  • Constitution of Kenya, 2010Article 41(1)
Jurisdiction invoked
Original jurisdiction over employment and labour relations claims (Article 41 fair labour practices; Employment Act, No. 11 of 2007; Labour Relations Act, 2007)

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, "Wilson Mukuha & 11 others v Pabari Enterprises Limited [2019] KEELRC 657 (KLR)", Case Analysis (2019). Cause No 262 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/657/eng@2019-10-07

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