Michael Osino Ng’onga & 3 others v Siaya County Public Service Board [2020] KEELRC 1037 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimants, engaged as casuals, had converted to protected employment under the Employment Act
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.
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.
Whether the termination was lawful and fair
The terminations were unlawful and unfair because the claimants were dismissed by SMS without notice, notice to show cause, reasons or a hearing.
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.
Entitlement to terminal benefits and quantum of reliefs
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.
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.
Legal principles established
#- 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
#- 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.One month salary in lieu of notice to each claimant: Kshs. 3,600, 6,237, 5,141 and 6,000 respectively
- 3.Leave pay in lieu of untaken leave days: Kshs. 10,800; 18,711; 15,423 and 24,000 respectively
- 4.Terminal gratuity at 15 days salary for each completed year: Kshs. 14,400; 24,949; 30,846 and 12,000 respectively
- 5.Interest at court rates from date of filing suit on terminal benefits and from date of judgment on compensation
- 6.Costs of the suit to the claimants
- 7.Claims for underpayments dismissed
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment Act, No. 11 of 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.