Kenya County Government Workers Union Bungoma County Branch v Bungoma County Public Service Board & another [2020] KEELRC 1058 (KLR)

Section 37(1) deems the contract of a casual employee who works for one month or more, or whose work cannot be completed within three months, to be one paid monthly with the protections of Section 35(1)(c). The respondents failed to demonstrate that the long list of 463 employees were not in their employ as casuals for prolonged periods exceeding seven years, nor to explain why they continued to employ such a large number of persons on terms violating their statutory and constitutional rights. Pre-2010 Recognition Agreements and CBAs apply between the parties.

The petitioner alleged that some casual employees were confirmed to permanent and pensionable terms while others in the same position were left out, without justification, and that this discrimination could only be explained by nepotism and favouritism. Section 5 of the Employment Act prohibits direct or indirect discrimination in recruitment, terms and conditions of employment and related matters. The respondents did not demonstrate the criteria used to confirm some casual employees and leave out others, nor disprove the long list of appointment letters issued by the erstwhile local governments.

Section 37(4) empowers the court in a dispute over a casual employee's terms to declare the employee employed on terms consistent with the Act, so invoking the constitutional regime of rights was not strictly necessary. The court noted petitions are more complex and attract higher filing fees than simple claims under the E&LRC (Procedure) Rules 2016, and that adopting simpler modes enhances the courts' capacity to deliver justice expediently.