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ELRCPartially AllowedCause No 15 of 2018· [2021] KEELRC 2052 (KLR)

Henry Oluoch Onyango v Anvi Emporium Limited [2021] KEELRC 2052 (KLR)

Employment and Labour Relations Court
3 March 2021
652 words in judgment
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The bottom line

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A Kenyan court ruled a 'casual' worker who served over a month becomes a permanent-term employee, and firing him without a show-cause letter was unfair.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a machine operator, sued for constructive dismissal, breach of contract and underpayment of wages. The Respondent contended he was a casual worker who deserted duty in June 2016. The court adopted the issues identified in the parties' submissions. On underpayment, the claim failed because the Claimant did not disclose the applicable Regulation of Wages (Amendment) Orders, making it impossible to verify shortfalls against gazetted minimums. On the nature of the contract, the court held that although the Respondent described him as a casual employee, continuous service of more than one month converted the engagement into term employment under sections 9 and 37 of the Employment Act, 2007. On termination, the court preferred the Claimant's testimony that the separation followed his joining a trade union, which was corroborated by documentary evidence of a dispute between the union and the Respondent. Even on the Respondent's version of desertion, the court held the employer should have issued a show-cause before accepting the repudiation, applying Societe General v Geys. The court declared the termination unfair. Considering service from about 2005 to 2016, it awarded compensation equivalent to five months' wages (Kshs 30,800/-) and one month's pay in lieu of notice (Kshs 6,160/-) under section 35(1), a total of Kshs 36,960/-. Severance pay was refused because the separation was not a redundancy. The Claimant was awarded costs. Judgment delivered in Kisumu on 3 March 2021 by Radido Stephen, Judge.

Key legal issues

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01

Underpayment of wages

Holding

Claim failed for want of proof of the applicable wage orders

Reasoning

The court held that underpayment arises where wages fall below prescribed minimum rates or contractually agreed wages. The Claimant did not identify which Regulation of Wages (Amendment) Orders applied to his employment, so the court could not verify any shortfall against gazetted minimums.

p. 1
02

Nature of the contract - casual versus term employment

Holding

The Claimant had become a term employee

Reasoning

Although the Respondent contended the Claimant was a casual worker within the section 2 definition of the Employment Act, continuous service exceeding one month converted the engagement into term employment under sections 9 and 37 of the Act.

p. 1
03

Unfair termination

Holding

Termination found unfair; the Claimant's account of union-related separation was preferred

Reasoning

The parties gave conflicting accounts. The Claimant testified the separation followed union membership, supported by documentary evidence of a union-employer dispute. The court found this plausible. Even on the Respondent's own account of desertion, no show-cause preceded acceptance of the alleged repudiation (Societe General v Geys), so the termination was unfair.

p. 2
04

Compensation and notice pay

Holding

Five months' wages as compensation and one month's salary in lieu of notice awarded

Reasoning

Considering service from about 2005 to 2016, the court assessed compensation at five months' wages, computed at Kshs 280/- per day multiplied by 22 days to give a monthly wage of Kshs 6,160/-. One month's notice pay was awarded under section 35(1) of the Employment Act.

p. 2

Legal principles established

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  • A casual employee who serves continuously for more than one month becomes a term employee by virtue of sections 9 and 37 of the Employment Act
  • Where an employee abandons duty, the employer must issue a show-cause/ultimatum before accepting the repudiation of contract

Court orders

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  1. 1.Declaration that the Claimant's employment was unfairly terminated
  2. 2.Award of compensation equivalent to 5 months' wages of Kshs 30,800/-
  3. 3.Award of pay in lieu of notice of Kshs 6,160/- (total Kshs 36,960/-)
  4. 4.Claimant to have costs of the Cause

Authorities

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Legislation

  • Employment Act, 2007Section 2
  • Employment Act, 2007Sections 9 and 37
  • Employment Act, 2007Section 35(1)
  • Regulation of Wages (Amendment) OrdersNot specified

Cases cited (1)

  • Societe General, London Branch v Geys
    (2012) UKSC 63
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

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, "Henry Oluoch Onyango v Anvi Emporium Limited [2021] KEELRC 2052 (KLR)", Case Analysis (2021). Cause No 15 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2052/eng@2021-03-03

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