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ELRCPartially AllowedNot stated in judgment· [2020] KEELRC 1075 (KLR)

Kioko Ngila v Vishak Builders Limited [2020] KEELRC 1075 (KLR)

Employment and Labour Relations Court
12 May 2020
MOMaureen Onyango
1,795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant sued the respondent, a building contractor, alleging unfair termination of his employment on 5th February 2016 after some six years and eight months as a welder/steel fixer, and sought one month's pay in lieu of notice, unpaid leave allowance, service gratuity, unpaid NSSF contributions, twelve months' compensation for unfair termination, interest and costs. The respondent denied the claim, asserting the claimant worked intermittently as a casual employee on various projects and deserted duty when work remained available. The court framed three issues: whether the claimant was a casual employee, whether his employment was unfairly terminated, and whether he was entitled to the remedies sought. On the first issue, the court held that although construction workers need not be permanent, the claimant was not a casual employee under Section 2 of the Employment Act, as he worked longer than 24 hours at a time and his service across sites was deemed continuous under the Wages (Building) Order. On the second issue, applying Section 47(5), the court found the claimant had not discharged the burden of proving termination: his uncorroborated account that he was told not to return after declining overtime was outweighed by the respondent's denial. Consequently, notice pay and twelve months' compensation were refused, as was the NSSF claim (being an alternative to service pay, which was awarded). However, the respondent did not deny the claimant never took annual leave, so the court awarded 87.5 days' leave (Kshs.56,875) for about 50 cumulative months of service, and service pay at 15 days per year for 5 years before 2015 (Kshs.48,750), the respondent having adduced no evidence on NSSF or service pay. Judgment was entered for the claimant in the total sum of Kshs.105,625, with costs to the claimant and interest from the date of judgment. The judgment was delivered virtually pursuant to COVID-19 directions, guided by Articles 159(2)(d) and 48 of the Constitution and Section 1B of the Civil Procedure Act.

Key legal issues

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01

Whether the claimant was a casual employee

Holding

The claimant was not a casual employee; he worked on building sites as a Steel Fixer for as long as there was work, and continuity of service across sites is deemed unbroken under the Wages (Building) Order.

Reasoning

The respondent is a building contractor whose workers' terms fall under the Regulation of Wages and Conditions of Employment (Building, Construction, Timber and Furniture) Order. That Order recognises non-permanent employment in construction but does not make workers casuals. A casual employee works no longer than 24 hours at a time. The respondent's own evidence showed the claimant worked on successive sites totalling about 50 months, and under paragraph 20 of the Building Order service transferred between sites is continuous and unbroken.

p. 3
02

Whether the claimant's employment was unfairly terminated

Holding

No unfair termination was proved; the claimant failed to discharge the statutory burden of proving termination.

Reasoning

Under Section 47(5) of the Employment Act the employee bears the burden of proving that unfair termination occurred, while the employer must justify the grounds. The claimant did not state who specifically told him not to report back, and his uncorroborated word stood against the respondent's denial that it terminated him. On a balance of probabilities the claimant failed to persuade the court, so no unfair termination was established.

p. 3
03

Whether the claimant is entitled to the remedies sought

Holding

Partially: annual leave and service pay awarded; notice pay, compensation for unfair termination and NSSF refused.

Reasoning

Having failed to prove unfair termination, the claimant was not entitled to notice pay or 12 months' compensation. The respondent did not deny that the claimant never took annual leave, so leave was computed for about 50 cumulative months of service at 1.75 days per month. As the respondent adduced no evidence on NSSF or service pay, service pay was awarded at 15 days per year for 5 years before 2015; the NSSF claim fails as it is only an alternative to service pay.

p. 3

Legal principles established

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  • A casual employee is one whose terms provide for payment at the end of each day and who is not engaged for a longer period than twenty-four hours at a time; a construction worker engaged on successive sites is not a casual employee where service is deemed continuous.
  • The burden of proving that an unfair termination occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer.
  • An employee who fails to adduce corroborated evidence of termination has not discharged the burden of proof on a balance of probabilities.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent in the total sum of Kshs.105,625
  2. 2.Award of Kshs.56,875 on account of annual leave (87.5 days at Kshs.650 per day)
  3. 3.Award of service pay for the years before 2015 at 15 days per year for 5 years, being Kshs.48,750
  4. 4.The respondent shall pay claimant's costs
  5. 5.Interest shall accrue from date of judgment

Authorities

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Legislation

  • Employment ActSection 2 (definition of casual employee)
  • Employment ActSection 37(1)
  • Employment ActSection 35(1)(c)
  • Employment ActSection 47(5)
  • Employment ActSection 28(1)
  • Regulation of Wages and Conditions of Employment (Building, Construction, Timber and Furniture) OrderParagraph 20 - Continuity of service
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act over claims of unfair termination and employment benefits

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, "Kioko Ngila v Vishak Builders Limited [2020] KEELRC 1075 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1075/eng@2020-05-12

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