Josephat Mwanza Mutua v Kerbbooke (K) Limited [2021] KEELRC 945 (KLR)
The bottom line
#A Kenyan court ruled that a worker paid as a casual for over a month automatically became a permanent employee entitled to notice and a hearing before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was employed as a Tailor or Production Machinist
The Claimant failed to prove he was engaged as a Tailor; the evidence showed he was engaged as a Production Machinist performing a specific task in mass production.
The contract of employment was oral, so the Court examined the workplace circumstances. The Claimant himself testified he performed defined tasks on portions of garments using tailoring machines. The Respondent's witness explained mass production processes and confirmed tailoring and production are different. On a preponderance of evidence, the burden of proving engagement as a Grade II Tailor was not discharged.
Whether the Claimant was a casual or term employee
Though engaged and paid as a casual, the Claimant's contract was converted by operation of law under Section 37 of the Employment Act to a term contract after working the equivalent of more than one month.
Section 2 defines a casual employee as one paid at the end of each day and not engaged for longer than 24 hours at a time. The Claimant was paid every two weeks and worked from January 2014 to March 2017. Section 37(1) deems the contract of a casual who works the equivalent of not less than one month to be one where wages are paid monthly, entitling him to the protections of the Act including notice, leave and service pay.
Whether the Claimant's termination was unfair
The Respondent had a valid and fair reason (misconduct), but the termination without notice and without a hearing violated Sections 35(1), 41 and 45 of the Employment Act and was therefore unfair.
The Claimant admitted talking to fellow workers during working hours, giving the employer a valid reason. However, as a term employee by operation of law, he was entitled to 28 days' notice or payment in lieu and to a hearing before termination. He was dismissed the same day by word of mouth without these procedural safeguards, rendering the termination procedurally unfair.
Legal principles established
#- A casual employee who works for a period equivalent to not less than one month has his contract deemed by operation of law to be a term contract with monthly wages under Section 37 of the Employment Act.
- Casual employment entails engagement for a period not longer than 24 hours at a time with payment made at the end of the day.
Court orders
#- 1.Judgment entered in favour of the Claimant in the sum of Kshs.85,007.10 with costs and interest at Court rates from the date of the judgment
- 2.The Respondent to issue a Certificate of Service to the Claimant forthwith
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephat Mwanza Mutua v Kerbbooke (K) Limited [2021] KEELRC 945 (KLR)", Case Analysis (2021). Not stated in the judgment (statement of claim dated and filed 5th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/945/eng@2021-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.