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ELRCPartially AllowedEmployment and Labour Relations Cause (claim dated 30th October 2015, filed 2016) – Nairobi· [2021] KEELRC 738 (KLR)

Joash Ogara Mainga & Christopher Munyoki Munene v Dhl Exel Supply Chain (K) Limited [2021] KEELRC 738 (KLR)

Employment and Labour Relations Court
15 October 2021
OKOcharo Kebira
4,454 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a 'casual piece-rate worker' doesn't legally exist, awarded a loader notice pay and compensation for unfair termination.

What this practically means

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Executive summary

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The claimant, engaged by the respondent as a loader from about June 2012 and earning a monthly salary of Kshs. 32,253, was terminated on 18th January 2015 along with 47 others on the ground that work had diminished. He claimed the termination was an unfair redundancy, seeking declarations, terminal dues of Kshs. 1,428,951.85, a certificate of service, costs and interest. The respondent maintained he was a casual piece-rate worker engaged on and off, payable and releasable whenever work ran out. The 1st claimant's identical claim had been compromised in ELRC 9580 of 2016 (Joash Obara Mainga v DHL Exel Supply Chain (K) Limited) and was marked settled, so only the 2nd claimant's claim proceeded. The court framed four issues: nature of employment, fairness of termination, reliefs and costs. It held that 'casual piece-rate worker' is a category unknown to the Employment Act; applying Krystaline Salt Limited v Kwakwe Mwakele, the claimant was a piece-rate employee, not a casual, so section 37(4) conversion did not arise. The termination breached section 35(1)(c) (no notice, no payment in lieu under section 36) and was substantively unfair since the respondent failed to discharge its section 43 burden of proving the reason, attracting the section 45 defaulting implication. Time-based claims (overtime, off days, public holidays) and house allowance were refused as incompatible with piece-rate work, and redundancy-based reliefs were also declined. Judgment was entered with a declaration, Kshs. 32,253 notice pay, Kshs. 161,265 compensation under section 49(1)(c), interest and costs to the claimant.

Key legal issues

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01

Nature of the claimant's employment

Holding

The claimant was a piece-rate employee, not a casual worker and not eligible for conversion under section 37(4).

Reasoning

The court contrasted the statutory definitions of a casual employee (section 2) and piece work. Evidence showed pay varied with crates moved, pay slips were issued and monthly payments were made, inconsistent with casual engagement. 'Casual piece-rate worker' is a category unknown to the statute. Since no casual employment existed, the precondition for section 37(4) conversion was not met.

p. 5
02

Procedural fairness of the termination

Holding

Termination was procedurally unfair for want of the section 35(1)(c) notice and non-payment in lieu under section 36.

Reasoning

The respondent's witness admitted no notice was given. The statutory notice requirement was not enacted for ornamental purposes; its breach, absent payment in lieu, deprived the termination of procedural fairness.

p. 5
03

Substantive fairness of the termination

Holding

Termination was substantively unfair; the respondent failed to prove the reason for termination under section 43.

Reasoning

The employer bore the burden of proving the reason for termination. Its witness made a bare assertion that work diminished due to loss of a major client but placed no material before court. The defaulting implication under section 45 was invoked; the claimant did not contribute to the termination.

p. 6
04

Reliefs

Holding

Awarded notice pay of Kshs. 32,253 and five months' gross salary compensation of Kshs. 161,265 under section 49(1); refused time-based claims and house allowance.

Reasoning

Time-based claims are incompatible with piece-rate employment where output, not time, is the measure. Compensation of five months' salary was fixed considering the respondent's attitude that piece-rate employees are terminated without formalities, the length of service, and the claimant's non-contribution to the termination.

p. 6

Legal principles established

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  • There is a definite statutory line differentiating casual workers from piece-work rated workers; one cannot be both.
  • Conversion of casual employment to a term contract under section 37(4) requires proof that the employee started as a casual and continued so working.
  • Failure to issue statutory notice under section 35(1)(c) and to pay in lieu under section 36 renders a termination procedurally unfair.
  • Where an employer fails to prove the reason for termination under section 43, the termination is deemed unfair under section 45.

Court orders

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  1. 1.A declaration that the termination of the claimant's employment was not procedurally and substantively fair
  2. 2.One month's salary in lieu of notice, Kshs. 32,253.00
  3. 3.Compensation pursuant to section 49(1)(c) of the Employment Act, 2007, Kshs. 161,265.00 (5 months' gross salary)
  4. 4.Interest on the awards in (b) and (c) from the date of filing suit till full payment
  5. 5.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007Section 2 (definition of casual employee and piece work)
  • Employment Act, 2007Section 9
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 18 (including 18(5)(b) as argued)
  • Employment Act, 2007Section 20
  • Employment Act, 2007Section 27(2)
  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 37 (including 37(4))
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45 (including 45(2)(c))
  • Employment Act, 2007Section 49(1)(c)

Cases cited (3)

  • Faiza Mayabi v First Community Bank Limited
    [2019] eKLR
  • Bernard Ochieng Odhiambo & Another vs Prime Aluminium Cement Casement
    (2016) eKLR
  • Krystaline Salt Limited V Kwakwe Mwakele & 67 others
    Civil Appeal number 79 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (matter commenced by memorandum of claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Joash Ogara Mainga & Christopher Munyoki Munene v Dhl Exel Supply Chain (K) Limited [2021] KEELRC 738 (KLR)", Case Analysis (2021). Employment and Labour Relations Cause (claim dated 30th October 2015, filed 2016) – Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/738/eng@2021-10-15

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