Dickson Aluvizia Livasia v Mufate Growers Sacco Ltd [2020] KEELRC 1136 (KLR)
The bottom line
#A Kenyan court ruled that a 'casual' worker who serves over a month gains full employment protection, and sending him on indefinite leave was unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was a casual employee or a protected employee
Although initially engaged as a casual, the claimant converted to a protected employee under Section 37 of the Employment Act after the first month, having worked continuously for six years and six months
The court analysed the evidence of both parties and found the claimant worked continuously for six and a half years as a messenger and general support staff. His work was not of a nature completed within three months, so the casual engagement could not endure beyond the first month. He was therefore entitled to annual leave of at least 21 days per completed year and to all minimum statutory terms under Parts III, IV, V and VI of the Employment Act.
Whether the termination was lawful and fair
Sending the claimant on indefinite leave without recall, pay or terminal benefits amounted to constructive dismissal, unlawfully and unfairly effected on 30th April 2016 in violation of Sections 36, 41, 43 and 45 of the Employment Act
The claimant proved he was sent on indefinite leave on 30th April 2016, returned after a month and was sent back, and was never recalled for over seven months until he filed suit. He received no salary, notice, show-cause letter or hearing. Demand letters went unanswered. The court held the respondent's conduct was an unlawful repudiation and constructive dismissal, entitling the claimant to compensation under Section 49(1)(c) and (4) of the Act.
Whether the claimant is entitled to the reliefs sought
The claimant was awarded ten months' salary compensation, one month notice pay, gratuity and three years' leave pay, but failed on the underpayments claim
Considering the claimant's six and a half years of service, clean record, low pay, lack of rest days or leave, non-contribution to the dismissal and lack of terminal benefits or certificate of service, the court awarded ten months' salary compensation. Notice pay of one month was awarded as he proved summary dismissal without notice. Gratuity was awarded because he was not registered with NSSF. Leave pay was limited to the last three years of service. The underpayment claim failed on proof.
Legal principles established
#- A casual employee engaged in work that cannot be completed within three months converts to a protected employee under Section 37 of the Employment Act upon completion of the first month of service
- Termination of a protected employee without notice, notice to show cause and a hearing violates Sections 36, 41, 43 and 45 of the Employment Act
- Sending an employee on indefinite leave with no intention of recalling them amounts to constructive dismissal and unlawful repudiation of the employment contract
Court orders
#- 1.Compensation for unlawful and unfair dismissal of Kshs. 80,000 (ten months' salary)
- 2.One month salary in lieu of notice of Kshs. 8,000
- 3.Gratuity at 15 days' salary per completed year of service in the sum of Kshs. 24,000
- 4.Annual leave pay for the last three years of service in the sum of Kshs. 24,000
- 5.Total award of Kshs. 136,000 with interest at court rates from date of filing suit in respect of notice pay, gratuity and annual leave, and from date of judgment in respect of compensation, till payment in full
- 6.Respondent to provide the claimant with a certificate of service within 30 days of the judgment
- 7.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Aluvizia Livasia v Mufate Growers Sacco Ltd [2020] KEELRC 1136 (KLR)", Case Analysis (2020). Cause No 32 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1136/eng@2020-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.