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ELRCPartially AllowedCause No 1134 of 2016· [2020] KEELRC 151 (KLR)

Francis Njoroge Ngaruia v Olooltepes Picnic Site Limited [2020] KEELRC 151 (KLR)

Employment and Labour Relations Court
4 December 2020
MOMAUREEN ONYANGO
4,077 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that suspending a worker indefinitely without a hearing counts as unfair dismissal, awarding the waiter Kshs.77,500 and costs.

What this practically means

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Executive summary

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The Claimant, a waiter employed by the Respondent from March 2014 (as pleaded) at a monthly salary rising to Kshs.10,000, sued for unfair termination after being verbally stopped from working on 22nd January 2016 and told to return on 15th February 2016, after which he was never called back. The Respondent denied a contractual relationship, asserting the Claimant was a casual worker who was indefinitely suspended, not terminated, after allegedly reporting to work drunk and abusive on 15th February 2016. The Respondent closed its case without calling any of its five witnesses. The court framed three issues: the nature of employment, fairness of termination, and entitlement to reliefs. It held that the Respondent's own pleadings admitted at least one year of service, so under Section 37 of the Employment Act the engagement converted to a term contract with monthly wages. Relying on Sections 41, 43 and 45 of the Employment Act and the authority in Joseph Okelo Adhiambo and Donald Odeke, the court found that the indefinite suspension without a hearing amounted to unfair termination. The Claimant was awarded notice pay of Kshs.10,000, service pay of Kshs.5,000, leave of Kshs.14,808, public holiday pay of Kshs.7,692.30, and compensation of four months' salary (Kshs.40,000), totalling Kshs.77,500.30, plus a certificate of service and costs. Claims for house allowance and overtime failed for want of proof, the Claimant having been paid a consolidated wage above the statutory minimum. Judgment was delivered at Nairobi on 4th December 2020.

Key legal issues

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01

Whether the Claimant was a casual or permanent employee

Holding

Having worked for at least one year continuously, his employment converted to a term contract under Section 37 of the Employment Act

Reasoning

The Respondent pleaded that the Claimant failed to perform his obligations from January 2015 to December 2015, thereby admitting at least a year of service, yet did not comment on the averment of 1 year and 10 months. It produced no documentary evidence of casual engagement. Under Section 37, continuous work of not less than a month deems the contract one with monthly wages.

p. 4
02

Whether the termination was unfair

Holding

The indefinite suspension from 15th February 2016 without a hearing amounted to unfair termination

Reasoning

The Respondent closed its case without calling any of its five witnesses, leaving the Claimant's testimony unrebutted. The Claimant denied receiving warning letters and being heard. Under Sections 41, 43 and 45 of the Employment Act an employee must be accorded a hearing; an indefinite suspension akin to termination without hearing is ipso facto unfair.

p. 5
03

Entitlement to reliefs

Holding

Claimant awarded notice pay, service pay, leave, public holiday pay, 4 months' compensation and certificate of service; house allowance and overtime claims failed for want of proof

Reasoning

Section 49 compensation was assessed at 4 months' salary considering 1 year and 10 months of service and the manner of termination. Notice pay flows from Section 35(1)(c) and Section 49(1)(a), service pay from Section 35(5), and certificate of service from Section 51. House allowance and overtime were not proved.

p. 5

Legal principles established

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  • Casual employment converts to a monthly term contract where a casual employee works for a period amounting to not less than one month continuously
  • An indefinite suspension of an employee without a hearing amounts to unfair termination
  • Failure by an employer to adduce evidence leaves uncontroverted averments of the employee

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs.10,000.00
  2. 2.Service pay (one year) of Kshs.5,000.00
  3. 3.Annual leave for one year, 10 months (38.5 days) of Kshs.14,808.00
  4. 4.Public holidays (10 days paid at double the daily rate as per law) of Kshs.7,692.30
  5. 5.Compensation of 4 months' salary of Kshs.40,000.00 (total award Kshs.77,500.30)
  6. 6.Respondent to issue certificate of service to the claimant in terms of Section 51 of the Employment Act
  7. 7.Respondent to pay claimant's costs for this suit

Authorities

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Legislation

  • Constitution of KenyaArticles 41, 41(1), 47(1), 159(2)(d), 48
  • Employment Act, 2007Sections 2, 10(1)(2), 27, 28(1)(a), 31, 35(1)(c), 35(5)(6), 36, 37, 41, 43(1), 45, 47(5), 49, 49(1)(a), 51
  • ILO Convention 158 on termination of employment, 1982
  • Employment (General) Rules - Second ScheduleRule 16
  • Regulation of Wages (General) Order2016 minimum wage
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (9)

  • Francis Ndirangu Wachira v Betty Wairimu Maina
    (2019) eKLR
  • Gilbert Mariera Makori v Equity Bank Limited
    (2016) eKLR
  • CMC Aviation Limited v Mohammed Noor
    Civil Appeal No. 199 of 2013
  • Nicholas Muasya Kyula v FarmChem Limited
    Industrial Cause No. 1992 of 2011: (2012) LLR 235 (ICK)
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Limited
    (2014) eKLR
  • Martin Ireri Ndwiga v Olerai Company Limited
    (2018) eKLR
  • Joseph Okelo Adhiambo & another v Y. J. Elmi & 2 others
    [2012] eKLR
  • Donald Odeke v Fidelity Security Ltd
    Cause No. 1998 of 2011
  • Millicent Owade v Essentials Manufacturing Company Limited
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (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, "Francis Njoroge Ngaruia v Olooltepes Picnic Site Limited [2020] KEELRC 151 (KLR)", Case Analysis (2020). Cause No 1134 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/151/eng@2020-12-04

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