Elizabeth Njoki Kamau v Kenya Medical Laboratory and Technologists Board [2020] KEELRC 1786 (KLR)
The bottom line
#A Kenyan court ruled an intern who kept working becomes a full employee, so firing her without a hearing was unfair and worth over Kshs.410,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee of the respondent
Yes - the respondent did not deny employing her; her internship lapsed in November 2011 and she was thereafter a regular employee working continuously until 11 July 2014
The respondent admitted engaging the claimant as an intern and later as a piece rate worker. The Employment Act defines an employee to include an apprentice and indentured learner, and Section 18(1) contemplates piece-work within a contract of service. The letter of termination itself referred to internship. There was no letter extending the internship and no evidence of a break in service, so after the internship lapsed she was a regular employee.
Whether the termination was unfair
Yes - the termination was procedurally and substantively unfair
Having found the claimant was a regular employee, she was entitled to the same treatment as other employees, including a disciplinary hearing before termination. Warning letters showed the respondent contemplated disciplinary action for misconduct but never accorded her a hearing as required by Section 41 of the Employment Act, nor did it give a valid reason under Section 43. The termination was therefore unfair.
What remedies the claimant is entitled to
Notice pay, unutilised leave pay and 6 months' salary as compensation; reinstatement refused
Reinstatement is available only within 3 years of termination and on proof of exceptional circumstances, neither of which was satisfied. The court awarded pay up to termination, three months' notice pay per the respondent's HR Manual clause 8.4.1, 36 days' unutilised leave computed at salary/22 x 36, and six months' salary as compensation under Section 49(4), using the net salary of Kshs.38,607.10 from the bank statement.
Legal principles established
#- An intern is an indentured learner and therefore an employee; a piece rate worker is also an employee under Section 18(1) of the Employment Act
- Where the internship lapses and the worker continues to work continuously for remuneration, the worker becomes a regular employee
- Termination without a disciplinary hearing under Section 41 and without a valid reason under Section 43 of the Employment Act is unfair
Court orders
#- 1.Respondent to pay 3 months' notice pay of Kshs.115,821.30
- 2.Respondent to pay 36 days leave pay of Kshs.63,175.25
- 3.Respondent to pay 6 months' salary as compensation for unfair termination of Kshs.231,642.60
- 4.Total award of Kshs.410,639.15, which shall not be subject to statutory deductions
- 5.Respondent to pay claimant's costs of the suit
- 6.Decretal sum to attract interest at court rates from date of judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims (claim under the Employment Act); specific provision not cited in judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Njoki Kamau v Kenya Medical Laboratory and Technologists Board [2020] KEELRC 1786 (KLR)", Case Analysis (2020). Cause No 1435 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1786/eng@2020-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.