Joseph Mumo v Kyanzavi Farmers Company Ltd [2019] KEELRC 2058 (KLR)
The bottom line
#A Kenyan court ruled that long-serving 'casual' farm workers were actually permanent employees and their summary dismissal without evidence or a hearing was unfair.
What this practically means
#Executive summary
#Key legal issues
#Conversion of casual employment to a term contract
The claimants' prolonged continuous casual service converted their employment to term contracts with monthly wages under section 37 of the Employment Act.
All claimants alleged continuous service as casuals from dates between 1991 and 2002 until 3.3.2011. The engagement was verbal and the respondent produced no employment records to disprove continuous service. Under sections 9, 10, 37 and 74 of the Act, the employer must keep and produce employment records; on failure, the court presumes the employee's allegations true. Section 37(1) deems the contract one with monthly wages where continuous work exceeds the statutory thresholds.
Substantive fairness of the summary dismissal
The respondent failed to prove the alleged gross misconduct (absenteeism and illegal selling of bananas), so the dismissal had no valid and fair reason.
Section 45(2) read with sections 43(1) and 47(5) places the burden of proving the reason for termination on the employer. The respondent admitted summarily dismissing the claimants for gross misconduct but adduced no evidence of habitual late reporting, absenteeism or the alleged illegal banana selling. The alleged reasons were therefore not proved on a balance of probability, rendering the dismissal substantively unfair.
Procedural fairness of the summary dismissal
The respondent failed to comply with the mandatory hearing procedure under section 41 and did not issue certificates of service, so the dismissal was procedurally unfair.
Section 41 requires the employer, before dismissal on grounds of misconduct, to explain the reasons to the employee in a language he understands, in the presence of a chosen companion, and to consider his representation. The respondent adduced no evidence of such a hearing, and never issued certificates of service required by sections 45(5)(c) and 51. The dismissals were therefore procedurally unfair.
Entitlement to reliefs (notice, service pay, accrued leave, compensation)
Having converted to term employees and been unfairly dismissed, the claimants were entitled to one month's notice pay, service pay, accrued leave (except Michael Ndunda who did not plead it) and 12 months' compensation under section 49(1).
The court awarded notice pay and 12 months' salary as compensation, considering the long service of 9 years and above, absence of employee misconduct contributing to dismissal, and reasonable expectation of continued employment. Service pay was awarded because the respondent did not prove registration under any social protection scheme such as NSSF, as required by section 35(5). Leave was assessed at 21 days per year under section 28, using pleaded daily wages.
Distinguishing Krystalline Salt v Kwekwe Mwaakele
The Court of Appeal decision in Krystalline Salt was distinguished because its facts involved piece work, not continuous casual employment as in this case.
The respondent relied on Krystalline Salt, where notice and leave awards were set aside because the work depended on availability of raw materials and employees received a rest day after every ten days. The court held the facts here distinguishable: the claimants were engaged in continuous casual employment which converted to term contracts, not piece work, and the respondent produced no leave records to show leave was taken.
Legal principles established
#- Where an employer fails to produce employment records as required under sections 9, 10 and 74 of the Employment Act, the court is entitled to presume that the employee's verbally alleged terms of employment are true.
- Casual employment converts to a term contract with monthly wages under section 37 of the Employment Act where the casual employee works continuously for the equivalent of not less than one month or performs work expected to last three months or more.
- The burden of proving both the valid reason for termination and a fair procedure rests on the employer under sections 43(1), 45(2) and 47(5) of the Employment Act.
- Dismissal for misconduct requires compliance with the mandatory hearing procedure in section 41 of the Employment Act before termination.
Court orders
#- 1.Judgment entered for each of the 6 claimants in ELRC 281, 282, 283, 284, 286 and 288 of 2013 of Kshs. 169,218 each (one month's salary in lieu of notice Kshs. 7,110; service pay Kshs. 31,995; accrued leave for 21 days x 9 years Kshs. 44,793; compensation of 12 months wages Kshs. 85,320)
- 2.Judgment for the claimant in ELRCC No. 285 of 2013 of Kshs. 277,500 (notice Kshs. 7,500; service pay Kshs. 75,000; accrued leave for 26 days x 20 years Kshs. 105,000; compensation Kshs. 90,000)
- 3.Judgment for the claimant in ELRCC No. 287 of 2013 of Kshs. 303,750 (notice Kshs. 13,500; service pay Kshs. 128,250; compensation Kshs. 162,000; no accrued leave as that relief was not sought)
- 4.Costs of the suit awarded to the claimants plus interest at court rates from the date of the judgment
- 5.The award to be paid subject to statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mumo v Kyanzavi Farmers Company Ltd [2019] KEELRC 2058 (KLR)", Case Analysis (2019). ELRCC No. 281, 282, 283, 284, 285, 286, 287 & 288 of 2013 (consolidated under ELRCC No. 287 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2058/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.