Wellington Maero Omwaya v Hygenic Butchery Trading Limited [2019] KEELRC 1956 (KLR)

The claimant was retained over one day and paid weekly for a period over 30 days on work that was not reasonably ending, so he was not a casual employee. The respondent's own witness confirmed weekly payment through the Sacco. As a protected employee he was entitled to the statutory minimum wage of Ksh.12,386.35 per month, and the agreed wage of Ksh.12,000.00, being below the minimum, was reduced by law to the statutory floor.

Even if the claimant committed gross misconduct by stealing and issuing threats, the respondent did not follow section 41(2) by serving and pursuing the notice to show cause, made no effort to reach the claimant to respond, and did not report the alleged criminal acts to the police or labour officer. The muster rolls for January 2018 were overwritten without clarification. In the absence of proper records and procedure, the claimant's word prevailed and summary dismissal was unfair.

The respondent filed muster rolls only for the months it alleged the claimant worked, and the payment schedule to the Sacco was not attached. A register covering the entire period from 5th January, 2017 would have resolved the dispute on the period of employment. The January 2018 record was overwritten without explanation. Because the respondent held back these details, the claimant's testimony that he worked 7 days a week without rest or holiday compensation was accepted.

The claimant himself testified there were two cooks working in shifts, and he could not coherently explain why he reported at 5am when the respondent opened at 6am. The court accepted the respondent's work schedule showing 6am to 4pm. The claimed 9 public holidays were not set out and, measured against the awarded rest days and leave pay, were declined. Leave pay of Ksh.8,670.40 was however due under sections 28 and 37 of the Employment Act.