William Onyango v Ainsworth Street Primary School & another [2020] KEELRC 1063 (KLR)
The bottom line
#A Kenyan court ruled a long-serving 'casual' worker was legally a term employee and his untimely redundancy dismissal was unfair, awarding him Kshs 75,961.
What this practically means
#Executive summary
#Key legal issues
#Nature of employment - casual or term contract
The Claimant was on a term contract by operation of law under section 37 of the Employment Act
The Respondents contended the Claimant remained a casual labourer from 1996 until separation in 2011. The Court noted section 37(1)(b) of the Employment Act provides for conversion where an employee serves for more than three months and is not paid at the end of each day. Since the Claimant served over three months on those terms, the contract converted to a term contract by operation of law regardless of the parties' characterisation.
Whether the termination was unfair
The termination on operational reasons was a redundancy effected without the statutory notice and was therefore unfair
The Claimant testified he was directed not to report back when the school reopened in 2011 due to lack of money to pay him. The Respondents led no evidence to rebut this, so the Court found the separation involuntary and attributable to operational reasons, amounting to redundancy. Section 40(1)(b) required 30 days' written notice, and none was given under that provision or section 35(1)(c), rendering the termination unfair.
Severance pay and pay in lieu of notice
Claimant awarded severance pay of Kshs 61,701/- and one month's salary in lieu of notice of Kshs 7,130/- under section 40(1)(f)
Having served about 15 years, the Claimant was entitled to severance pay under section 40(1)(f). The Court adopted a computation based on the last salary of Kshs 7,130/-, rejecting both the Claimant's figure of Kshs 82,113/- and the Respondents' figure of Kshs 53,475/-. The same section entitled the redundant employee to one month's salary in lieu of notice rather than the four months the Claimant sought, an amount the Respondents admitted in submissions.
Compensation under section 49(4)
Compensation declined despite the unfair termination finding
Section 49(4) sets out the factors to consider in awarding compensation, including the value of severance payable by law. Since severance pay had already been awarded, and considering that the School is a public institution with limited public funds, the Court exercised its discretion not to make an additional award of compensation under section 49(4) of the Employment Act, 2007.
August 2011 wages
Claim for August 2011 wages of Kshs 7,130/- allowed as the Respondents produced no records showing payment
The Court observed that the Respondents did not produce any records to show whether the Claimant was paid his wages for August 2011. In the absence of such records, the unchallenged claim for that month's wages, quantified at Kshs 7,130/-, was allowed in full.
Legal principles established
#- An employee who serves for more than three months and is not paid at the end of each day is converted to a term contract by operation of law under section 37 of the Employment Act
- Termination on operational reasons amounts to redundancy requiring 30 days' written notice under section 40(1)(b) of the Employment Act
- Failure to give the statutory notice of redundancy renders the termination unfair
Court orders
#- 1.Declaration that the termination of the Claimant's employment for operational requirements was unfair
- 2.Award of severance pay of Kshs 61,701/-
- 3.Award of August 2011 wages of Kshs 7,130/-
- 4.Award of pay in lieu of notice of Kshs 7,130/- (total Kshs 75,961/-)
- 5.Dismissal of the other reliefs (overtime, underpayments, compensation)
- 6.Claimant denied costs for failing to file/serve submissions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over breach of contract and wrongful/unfair termination of employment (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Onyango v Ainsworth Street Primary School & another [2020] KEELRC 1063 (KLR)", Case Analysis (2020). Cause styled as William Onyango (Claimant) v Ainsworth Street Primary School and Abdi Bire (then Headmaster). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1063/eng@2020-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.