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ELRCPartially AllowedCause No. 121 of 2018· [2020] KEELRC 1594 (KLR)

Gilbert Isandula Shikalo v Bernard Njoroge t/a Creative Metro Services [2020] KEELRC 1594 (KLR)

Employment and Labour Relations Court of Kenya
23 January 2020
1,841 words in judgment
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The bottom line

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A Kenyan court ruled a worker treated as casual for nearly ten years was legally a full-time employee, but his dismissal stood because he never reported a workplace problem to his employer.

What this practically means

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Executive summary

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The claimant, employed from 30th June 2008 as a loader in the respondent's garbage collection business in Nakuru at daily wages of Ksh.250, was dismissed on 12th February 2018 after failing on 10th February 2018 to collect garbage at Merica Hotel, which he attributed to a vehicle breakdown. He claimed underpayments, off-duty pay, public holiday pay, notice pay, annual leave, overtime, service pay, compensation and a certificate of service. The respondent alleged the claimant was a casual worker who deserted his duties and filed no work records and called no witness. The court held that sections 10(6) and (7) of the Employment Act impose a mandatory duty on the employer to produce work records, so the claimant's uncontroverted evidence was accepted. Applying section 37, his continuous casual service converted to full-time employment with statutory benefits. However, the court found the summary dismissal justified under sections 44(4) and 41(2), since the claimant failed to alert his employer to the vehicle breakdown for two days; notice pay and compensation were therefore refused, as was pay for untaken rest days. The claims for underpayments, 18 months' annual leave, public holiday dues, overtime at 4 hours for 6 days weekly, and service pay at 15 days for 9 full years were allowed and referred to the Labour Officer, Nakuru for tabulation, with a certificate of service to issue, mention in 45 days, and costs of the suit to the claimant.

Key legal issues

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01

Effect of employer's failure to produce work records

Holding

The respondent's failure to call any witness or file work records left the court with the claimant's uncontroverted evidence, which the court accepted

Reasoning

Sections 9(2) and 10(6) and (7) of the Employment Act impose a mandatory duty on the employer to keep and produce work records. Where the employer keeps no records and files none in court, the claims made by the claimant stand unrebutted and the court must act on the claimant's testimony, including that he was in continuous service for nearly ten years.

p. 2
02

Casual employment converted to full-time employment

Holding

By operation of section 37 of the Employment Act, the claimant's continuous service from June 2008 converted him to a full-time employee with statutory benefits

Reasoning

The respondent treated the claimant as a casual worker paid daily wages. Section 37 deems an employee engaged casually but working continuously to be employed under a contract of service on a monthly basis, entitling him to monthly wages, leave and a certificate of service. The court adopted the reasoning in Rashid Mazuri Ramadhani v Doshi & Company.

p. 3
03

Justification of summary dismissal

Holding

The claimant's failure to collect garbage at Merica Hotel and his failure to alert the employer for two days amounted to gross misconduct justifying summary dismissal

Reasoning

Under section 44(4) read with section 41(2) of the Employment Act, an employer may dismiss summarily for gross misconduct upon short notice. Although the claimant explained the failure by a vehicle breakdown, he never reported the problem to his manager or the office within two days, so the dismissal was justified and compensation and notice pay fell away.

p. 2
04

Claims for annual leave, public holidays, overtime and service pay

Holding

Leave for 18 months, public holiday dues, overtime of 4 hours for 6 days weekly, and service pay at 15 days for 9 full years were due and referred for tabulation

Reasoning

In the absence of work records, the claims for leave, public holidays and overtime were not challenged. Overtime was computed at 4 hours daily after deducting the lunch hour. Service pay was due because the respondent produced no evidence of compliance with section 35(5). Leave was limited to 18 months under section 28(4) as per E.Torgbor.

p. 3

Legal principles established

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  • Upon filing of a claim, the employer has a statutory duty to file all work records regarding the employee; failure leaves the court with the claimant's evidence
  • Section 37 of the Employment Act converts a casual employee engaged continuously into a full-time employee entitled to monthly wages and statutory benefits
  • An employee who fails to attend allocated duties and does not bring the matter to the employer's attention may be summarily dismissed for gross misconduct

Court orders

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  1. 1.Matter referred to the Labour Officer, Nakuru for tabulation of dues owing to the claimant
  2. 2.Leave days owing for a period of 18 months only, based on the last basic wage as at 10th February 2018
  3. 3.Underpayments from 1st July 2008 to 10th February 2018
  4. 4.Payment for public holidays dues for the same period
  5. 5.Overtime pay for 4 hours for 6 days each week
  6. 6.Service pay at the rate of 15 days for 9 full years served
  7. 7.Dues subject to the provisions of section 49(2) of the Employment Act, 2007
  8. 8.Claimant to be issued with a Certificate of Service under section 51 of the Employment Act, 2007
  9. 9.Mention in 45 days to confirm the Labour Officer tabulations
  10. 10.Costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 9(2)
  • Employment Act, 2007section 10(6) and (7)
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 37
  • Employment Act, 2007section 28(4)
  • Employment Act, 2007section 35(5)
  • Employment Act, 2007section 49(2)
  • Employment Act, 2007section 51

Cases cited (6)

  • David Kipkosgei Muttai versus Green Palms Academy
    [2014] eKLR
  • Stanley Onchwari versus Board of management Nakuru YMCA Secondary School
    [2005] eKLR
  • Dickson Matingi versus DB Scheker limited
    [2016] eKLR
  • Daniel Mueke versus Bhogals Auto World
    [2014] eKLR
  • Rashid Mazuri Ramadhani & 10 others versus Doshi & Company (Hardware) Limited & another
    [2018] eKLR
  • E.Torgbor versus Ladislaus Odongo Ojuok
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gilbert Isandula Shikalo v Bernard Njoroge t/a Creative Metro Services [2020] KEELRC 1594 (KLR)", Case Analysis (2020). Cause No. 121 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1594/eng@2020-01-23

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