Moses Mugira Rimbera v Bosky Industries Limited [2020] KEELRC 1028 (KLR)
The bottom line
#A Kenyan tailor won his unfair dismissal case after 7 years on piece rates, but lost money claims he couldn't prove with evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's dismissal was unfair
The dismissal was unfair; the Respondent, having filed no response, neither proved compliance with section 41 nor a valid reason for termination
The Respondent did not file a response, so the claimant's averments stood uncontroverted. Under section 47(5) of the Employment Act the employer bears the burden of justifying the grounds for dismissal. The court found the Respondent neither proved it complied with section 41 nor that the reason for termination (refusal to pay Kshs.500 for a work card re-issue) was valid.
Entitlement of piece rate workers to statutory benefits
A piece rate worker is entitled at least to the minimum wage, and after one month's service the contract converts to a term contract attracting one month's notice or pay in lieu
Applying Krystalline Salt, the court held that although piece rate workers are not entitled to all benefits of other forms of employment, they are at least entitled to the minimum wage. Under section 37(1)(a), service exceeding one month converted the arrangement to a term contract, entitling the claimant to one month's notice or pay in lieu. Section 18(1)(a) justified payment at the end of the day.
Burden of proving underpayment and other monetary claims
The claims for underpayment, NSSF refund, house allowance and leave failed for lack of proof
Section 10(7) of the Employment Act places the burden of proving a term of employment on the employee. The claimant's evidence on the amount paid was at variance with CW2's, so underpayment was not proved. The job card relied on for the NSSF, house allowance and leave deductions was blank, so those claims were dismissed.
Legal principles established
#- Where an employee alleges unfair termination, the evidential burden of justifying the grounds for dismissal rests on the employer under section 47(5) of the Employment Act
- A piece rate employee is at least entitled to the minimum wage
- An employee who has worked for longer than one month without a written term contract is deemed to be on a term contract and entitled to one month's notice or pay in lieu
Court orders
#- 1.A declaration that the claimant's employment was unfairly terminated
- 2.Compensation equivalent to 3 months' salary based on the statutory minimum wage for a tailor, in the sum of Kshs.57,279.80
- 3.Kshs.10,000 to cover the claimant's reasonable expenses and disbursements for the case
- 4.Interest at court rates on the awarded sums from the date of judgment
- 5.The prayer for refund of NSSF, house allowance and leave is dismissed for lack of proof
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction to hear and determine employment disputes (the Claimant's prayer 1: 'The Claimant herein prays that the Court has jurisdiction to hear and determine this matter')
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- West Kenya Sugar Company Limited v Karakacha (Employment and Labour Relations Appeal E001 of 2023) [2024] KEELRC 1383 (KLR)[2024] KEELRC 1383 (KLR)13 Jun 2024
Cite this brief
#Cite this brief
Caselaw, "Moses Mugira Rimbera v Bosky Industries Limited [2020] KEELRC 1028 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1028/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.