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ELRCPartially AllowedNot stated in the judgment (statement of claim dated and filed 5th June 2017)· [2021] KEELRC 945 (KLR)

Josephat Mwanza Mutua v Kerbbooke (K) Limited [2021] KEELRC 945 (KLR)

Employment and Labour Relations Court
27 September 2021
3,341 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant sued the Respondent for Kshs.1,015,753.03 alleging unfair termination on 28th March 2017 after about three years of service, claiming underpayments, payment in lieu of notice, accrued leave, weekly rest days, compensation, severance pay and public holiday pay, plus a certificate of service. The Respondent denied the claim, asserting the dismissal for misconduct was lawful and all dues paid, and that the Claimant was a Production Machinist, not a Tailor. The Court framed six issues. On the first, it found on a preponderance of evidence that the Claimant was engaged as a Production Machinist, not a Tailor, defeating the underpayment claim. Though the parties agreed he was engaged and paid as a casual worker, the Court held that under Section 37 of the Employment Act, 2007, his contract converted by operation of law to a term contract because he worked the equivalent of more than one month and was paid fortnightly. On termination, the Court found the Respondent had a valid reason (misconduct - talking to fellow workers during working hours) but that terminating him by word of mouth on the same day, without notice or a hearing, violated Sections 35(1), 41 and 45 of the Employment Act and was procedurally unfair. The Court awarded payment in lieu of notice (Kshs.15,210.50), accrued leave (Kshs.39,375.60) and two months' salary compensation (Kshs.30,421.00), but rejected claims for underpayment, rest days, severance and public holidays for want of proof. Judgment was entered for the Claimant in Kshs.85,007.10 with costs and interest, and the Respondent was ordered to issue a certificate of service.

Key legal issues

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01

Whether the Claimant was employed as a Tailor or Production Machinist

Holding

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.

Reasoning

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.

p. 3
02

Whether the Claimant was a casual or term employee

Holding

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.

Reasoning

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.

p. 4
03

Whether the Claimant's termination was unfair

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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

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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, "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.