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ELRCPartially AllowedNot stated in the judgment (consolidated suit)· [2020] KEELRC 1037 (KLR)

Michael Osino Ng’onga & 3 others v Siaya County Public Service Board [2020] KEELRC 1037 (KLR)

Employment and Labour Relations Court of Kenya
28 May 2020
1,636 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 confirmed that long-serving 'casual' workers are protected employees who cannot be dismissed by text message without notice or a hearing.

What this practically means

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Executive summary

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Four consolidated claims by former casual workers of the Siaya Public Service Board, who collected garbage and worked continuously from 2002, 2005, 2009 and 2010 respectively until their collective dismissal by SMS on 7 August 2014 without notice, notice to show cause, reasons or a hearing. The respondent contended the claimants were casuals on fixed term contracts released upon expiry and paid all terminal dues, and that they were entitled only to earned salary. The court framed two issues: whether the terminations were lawful and fair, and entitlement to reliefs. Applying section 37 of the Employment Act, the court held that the claimants, having worked continuously for well over one month and three months, were deemed monthly employees entitled to statutory protection and could not be dismissed without notice or a hearing, following Chemelil Sugar Co. v Ofuon and Nanyuki Water v Ntiriti. The dismissals violated sections 36, 41, 43 and 45 of the Employment Act and were unlawful and unfair. Each claimant was awarded compensation under section 49(1)(c) and (4) proportional to service (four to twelve months' salary as reasoned), one month's notice pay, three months' leave pay (the rest being time barred), and service gratuity at 15 days' salary per completed year, with interest and costs. Underpayment claims were dismissed as insufficiently proved. The judgment contains material internal inconsistencies between the reasoned compensation figures and the figures in the final orders.

Key legal issues

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01

Whether the claimants, engaged as casuals, had converted to protected employment under the Employment Act

Holding

Having worked continuously for periods exceeding one month and three months respectively, the claimants were deemed monthly employees entitled to minimum statutory terms and protection.

Reasoning

The court invoked section 37 of the Employment Act, which deems a casual employee's contract to be one where wages are paid monthly where the employee has worked continuously for the equivalent of not less than one month or performs work not completable within three months. The claimants had served from 2002 to 2010 respectively, far beyond those thresholds, and thus fell within Parts II–VI of the Act.

p. 2
02

Whether the termination was lawful and fair

Holding

The terminations were unlawful and unfair because the claimants were dismissed by SMS without notice, notice to show cause, reasons or a hearing.

Reasoning

As converted employees, the claimants could not be dismissed without notice, notice to show cause or an opportunity to be heard. RW1 conceded under cross-examination that employment was terminated without disciplinary action. The dismissal violated sections 36, 41, 43 and 45 of the Employment Act, entitling the claimants to compensation under section 49(1)(c) and (4), calibrated to length of service and the sudden loss suffered.

p. 2
03

Entitlement to terminal benefits and quantum of reliefs

Holding

Each claimant was awarded notice pay, three months' leave pay, and service gratuity at 15 days' salary per completed year; underpayment claims failed for want of proof.

Reasoning

Because the respondent treated the claimants as casuals, it remitted no NSSF or NHIF contributions and provided no pension scheme, so service gratuity at 15 days per completed year was appropriate. Leave pay was limited to three years' service as the rest was time barred. The court found the underpayment claims not sufficiently proved and dismissed them.

p. 3

Legal principles established

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  • A casual employee who has worked continuously for the equivalent of at least one month, or whose work cannot reasonably be completed within three months, is deemed to be employed on monthly wages and entitled to statutory protection under the Employment Act.
  • Dismissal without notice, notice to show cause or a hearing, merely because the employees were regarded as casuals, is unlawful and unfair and attracts compensation under Section 49 of the Employment Act.

Court orders

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  1. 1.Compensation for unlawful and unfair termination: Michael Osino Ng'onga Kshs. 28,000; Moses Siguda Odero Kshs. 61,692; Carren Auma Gunga Kshs. 31,635; Elias Okelo Ondiasa Kshs. 24,000
  2. 2.One month salary in lieu of notice to each claimant: Kshs. 3,600, 6,237, 5,141 and 6,000 respectively
  3. 3.Leave pay in lieu of untaken leave days: Kshs. 10,800; 18,711; 15,423 and 24,000 respectively
  4. 4.Terminal gratuity at 15 days salary for each completed year: Kshs. 14,400; 24,949; 30,846 and 12,000 respectively
  5. 5.Interest at court rates from date of filing suit on terminal benefits and from date of judgment on compensation
  6. 6.Costs of the suit to the claimants
  7. 7.Claims for underpayments dismissed

Authorities

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Legislation

  • Employment ActSection 37(1)
  • Employment ActSection 35(1)(c)
  • Employment ActSections 36, 41, 43, 45, 49(1)(c) and (4)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Chemelil Sugar Co. v Ebrahim Ochieng Ofuon & 2 others
    (2015) eKLR
  • Nanyuki Water and Sewerage Co. Ltd v Benson Mwiti Ntiriti
    (2018) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act, No. 11 of 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, "Michael Osino Ng’onga & 3 others v Siaya County Public Service Board [2020] KEELRC 1037 (KLR)", Case Analysis (2020). Not stated in the judgment (consolidated suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1037/eng@2020-05-28

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