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ELRCDismissedCause No. 146 of 2015· [2019] KEELRC 1754 (KLR)

Benard Onyango Oudu v Nakuru Industries Ltd [2019] KEELRC 1754 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
25 April 2019
MMM. Mbaru
1,913 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 a fixed-term contract that simply expires is a lawful end to employment, and old claims past three years die.

What this practically means

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Executive summary

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The claimant, employed by the respondent from around 2002 as a machine operator, claimed notice pay, underpayments, off-duty pay, public holiday pay, leave for seven years and compensation, contending he was underpaid contrary to applicable wage orders, worked excessive hours without rest days, and that the respondent's introduction of contract employment was designed to dismiss him after 12 years of service without reason. The respondent denied underpayment, asserting the claimant was a piece-rate weaver at first, later worked under outsourced management (Texco Services), then on yearly fixed term contracts with gratuity paid at the end of each; that the premises closed on public holidays; and that the claimant went on approved leave in January 2015, failed to resume duty on 26th February 2015, and was treated as a deserter. The court held that failure to attend work as directed justified summary dismissal under section 44(3) and (4) of the Employment Act; that a fixed term contract which expires without renewal ends lawfully on its terms and does not amount to unfair termination, so compensation was not justified; that under section 90 only claims within three years of the May 2015 filing survived, rendering the 2002-2008 claims time barred; and that the claimant's own evidence of weekly rest days and Saturday half-days, coupled with memos closing departments on public holidays, defeated the off-duty and holiday claims, which would amount to unjust enrichment. The entire claim was dismissed with costs to the respondent.

Key legal issues

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01

Whether non-renewal of a fixed term contract amounts to unfair termination

Holding

It does not; the contract ends lawfully on its terms and no compensation is due

Reasoning

The court held that employment on a fixed term contract is permissible and lawful under section 10(3) of the Employment Act. Where a contract expires and is not renewed at the instance of either party, the employment ends on its own terms. The claimant's last contract ended on 31st December 2013 without renewal, which was lawful and did not constitute unfair termination, so the compensation claim failed. Authorities on fixed term contracts were cited in support.

p. 3
02

Limitation of employment claims

Holding

Only claims within three years of filing survive under section 90; claims back to 2002 are time barred

Reasoning

The suit was filed on 22nd May 2015. Section 90 of the Employment Act limits claims to those accruing within three years of filing, meaning only claims up to May 2012 could stand. Those related to a contract ending 30th November 2012 for which gratuity was paid. Claims going back to 2002 fell under different contracts that ended on their terms and no cause was raised within the limitation period, so they were time barred.

p. 3
03

Whether the claimant worked on off days and public holidays

Holding

The claimant's own evidence showed weekly rest and Saturday half-days; premises closed on public holidays and no holiday work was proved

Reasoning

The claimant testified under oath that he worked 8 hours a day for 5 days a week, half day on Saturday, and was off on Sunday, translating to 192 hours off per year. On public holidays the respondent issued memos closing all departments, and the claimant's evidence of being directed by a supervisor to attend was found unconvincing. Claiming for leave or holiday work without accounting for this would amount to unjust enrichment.

p. 4

Legal principles established

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  • Failure to attend work as directed is a sufficient ground for summary dismissal for gross misconduct under section 44(3) and (4) of the Employment Act
  • A fixed term contract that expires without renewal ends lawfully on its terms and does not amount to unfair termination
  • Under section 90 of the Employment Act, only claims within three years of filing are enforceable

Court orders

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  1. 1.The claims made are found without basis and are hereby dismissed with costs to the respondent

Authorities

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Legislation

  • Employment Act, 2007section 27
  • Employment Act, 2007section 10(3)
  • Employment Act, 2007section 44(3) and (4)
  • Employment Act, 2007section 90
  • Legal Notice No. 64wage order (basic wage Ksh.8,001.00)
  • Legal Notice No. 71wage order (wage Ksh.9,049.10)

Cases cited (2)

  • Kenya Union of Domestic Hotels Educational Institutions Hospitals and Allied Workers versus Office of the Vice Chancellor, Kibabii University
    [2017] eKLR
  • Eunice Mwikali Munyao v Elys Chemical Industries Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment 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, "Benard Onyango Oudu v Nakuru Industries Ltd [2019] KEELRC 1754 (KLR)", Case Analysis (2019). Cause No. 146 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1754/eng@2019-04-25

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