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ELRCPartially AllowedELRC Case No 375 of 2017· [2020] KEELRC 1896 (KLR)

John Kipkurgat Sang v Board of Management Kerotet Girls High School [2020] KEELRC 1896 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret
13 February 2020
1,136 words in judgment
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The bottom line

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A Kenyan court ruled that a 'casual' cook who worked seven months was actually a monthly employee, so the school unfairly terminated him without notice or redundancy pay.

What this practically means

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Executive summary

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The claimant sued the respondent school's Board of Management alleging that his employment as a cook, which he said ran from 8th May 2016 to 4th May 2017, was unfairly terminated without notice, hearing or union involvement, and that he was unpaid for leave and notice and grossly underpaid against the applicable wages order. The respondent's case, led by its principal Joan Too, was that the claimant was engaged as a casual kitchen hand for seven months from 6th October 2016 pending Board interviews; that he applied and interviewed on 10th April 2017, emerging second behind Henry Bureti for a single post; and that he was released in good faith with commendation. The court applied sections 37, 35, 45 and 46 of the Employment Act. It held that having worked seven months, the claimant's casual engagement was deemed a monthly contract. While accepting the reasons for ending his engagement - failure to meet academic and chief's recommendation criteria at interview - may have been justifiable, the court found the claimant had a reasonable expectation to continue working, had served without complaint, and should have been notified of the reasons and compensated as a redundant employee. The termination was therefore unfair under section 45. Taking into account the short seven-month duration of service, the court awarded one month's salary in lieu of notice (Kshs 7,000), 14 days' pro rata leave pay (Kshs 3,270) and two months' salary as compensation for unfair termination (Kshs 14,000), a total of Kshs 24,270, plus costs of the suit.

Key legal issues

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01

Status of the claimant's employment

Holding

Though engaged as a casual/temporary cook, having worked seven months the contract was deemed monthly under section 37 of the Employment Act

Reasoning

The claimant worked for seven months awaiting Board interviews. Under section 37, a casual engaged for the equivalent of not less than one month is deemed a monthly employee to whom section 35(1)(c) notice provisions apply. The temporary letter did not alter this deeming.

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02

Fairness of termination

Holding

Termination was unfair under section 45: the reasons (failure to meet interview criteria) may have been justifiable, but the claimant was not notified nor compensated as redundant

Reasoning

The claimant had served without complaint and had a reasonable expectation to continue. He lost his post after an interview on academic and recommendation criteria he was never previously measured against. Since he was effectively displaced without notice or redundancy compensation, justice and equity were not observed.

p. 2
03

Quantum of relief

Holding

Award of one month's notice pay (Kshs 7,000), 14 days' pro rata leave pay (Kshs 3,270) and two months' salary as compensation (Kshs 14,000), totaling Kshs 24,270, plus costs

Reasoning

The court took into account the short duration of employment - seven months - in calibrating compensation for unfair termination, and granted notice pay and pro rata leave under the Employment Act provisions it had identified.

p. 2

Legal principles established

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  • A casual employee engaged for a period equivalent to not less than one month is deemed to be employed on monthly wage terms under section 37 of the Employment Act
  • A termination is unfair where the employer fails to act in accordance with justice and equity, including failing to notify the employee of the reasons and compensate them as redundant

Court orders

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  1. 1.Payment of one month's salary in lieu of notice (Kshs 7,000)
  2. 2.Payment of 14 days' pro rata leave pay (Kshs 3,270)
  3. 3.Payment of two months' salary as compensation for unfair termination (Kshs 14,000)
  4. 4.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment ActSection 37
  • Employment ActSection 35(1)(c) and 35(4)
  • Employment ActSection 45(4)(b)
  • Employment ActSection 46
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claims of unfair termination and terminal dues)

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, "John Kipkurgat Sang v Board of Management Kerotet Girls High School [2020] KEELRC 1896 (KLR)", Case Analysis (2020). ELRC Case No 375 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1896/eng@2020-02-13

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