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ELRCAllowedStatement of Claim referred under Section 69(a) of the Employment Act (referral from conciliation; related to Cause 216 of 2016 and Cause 14/2020)· [2021] KEELRC 2075 (KLR)

Kenya Union of Pre-Primary Education Teachers v Secretary, Laikipia County Public Service Board & another [2021] KEELRC 2075 (KLR)

Employment and Labour Relations Court
25 February 2021
DMD.K.Njagi Marete
3,084 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled Laikipia County must make its ECDE teachers permanent, pay proper salaries, and cover costs.

What this practically means

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Executive summary

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This first-instance judgment of the Employment and Labour Relations Court at Nyeri, delivered by D.K.Njagi Marete J on 25th February 2021, determined a trade dispute referred under Section 69(a) of the Employment Act, 2007 after the Respondent disregarded the conciliation process. The Claimant Union claimed unfair labour practice against ECDE teachers of Laikipia County, alleging an unstructured contract of service, and sought salary differentials from November 2016, remittance of statutory deductions, conversion of 428 grievants to permanent and pensionable terms, and supervision of the process by the Labour Commissioner. The Respondents denied any employer-employee relationship, asserting the teachers were engaged pre-2013 by Municipal Councils or school Boards of Management, received only an ex gratia stipend, and that no appointment letters or recognition agreement existed. The court framed three issues: privity of contract, entitlement to reliefs, and costs. Applying the statutory definition of a contract of service and the control test, the court found that monthly stipends, NSSF deductions, supervision, discipline and the constitutional devolution of pre-primary education to counties established an employer-employee relationship with the County Government. The Respondent's denial was dismissed as mere abdication of constitutionally endowed responsibility. The court allowed the claim in full: salary differentials from November 2016, remittance of unremitted statutory deductions, conversion of the 428 grievants to permanent and pensionable terms, an audit to verify the wider class of 711 grievants, supervision by the Commissioner of Labour with a report in 120 days, and costs borne by the Respondents.

Key legal issues

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01

Existence of an employer-employee relationship (privity of contract) between the County Government of Laikipia and the ECDE teachers

Holding

The court found that an employer-employee relationship existed between the grievants and the County Government despite the absence of written contracts, based on monthly stipends, NSSF deductions, supervision and control.

Reasoning

The court found as facts that 711 ECDE teachers serve full-time in the County's public primary schools, have received monthly stipends from the Respondents since 2016, and are controlled and disciplined by the Respondents or their agencies. Pre-primary education is a devolved county function under Part II of the Fourth Schedule to the Constitution. Applying Section 2 of the Employment Act's definition of a contract of service, and the control test, the payment of wages and exercise of supervision established employment. The Respondent's denial was mere abdication of constitutionally endowed responsibility.

p. 4
02

Entitlement of the grievants to the reliefs sought

Holding

Having found employment, the grievants were entitled to the reliefs sought: salary differences, remittance of statutory deductions, and conversion to permanent and pensionable terms.

Reasoning

The court held that having won on the issue of employment, the Claimant became entitled to the relief sought. The court granted the salary differential from November 2016 (when Petition 127 of 2014 was determined), ordered remittance of unremitted statutory deductions, conversion of the 428 grievants to permanent and pensionable terms, an audit to verify the broader class of 711 grievants, and supervision of implementation by the Commissioner of Labour reporting back in 120 days.

p. 5

Legal principles established

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  • A contract of service may be implied from conduct such as payment of monthly wages/stipends, statutory deductions, supervision and control, even absent a written appointment letter.
  • Contracts of service camouflaged as something other than employment will be exposed and minimum statutory terms applied.

Court orders

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  1. 1.Respondents ordered to pay each grievant the difference between their current monthly stipend and the salary recommended by the Salaries and Remuneration Commission or the ECDE teachers' schemes of service, whichever is favourable and higher, with effect from November 2016 when determination was made in Petition 127 of 2014.
  2. 2.Respondents compelled to remit any unremitted statutory deductions at the time of judgment to the respective authorities so entitled.
  3. 3.Respondents ordered to regularize and convert the terms and conditions of employment of all 428 grievants in the annexed schedule to permanent and pensionable terms under the Employment Act, 2007 and/or the ECDE Teachers Schemes of Service, the County Human Resource Manual and SRC Guidelines.
  4. 4.An audit to be undertaken by the parties to verify the difference between the 428 grievants and the newly brought out 711 alleged grievants with a view to incorporating them into employment and the benefits of the orders.
  5. 5.The Commissioner of Labour ordered to manage and supervise, with involvement of the parties, the execution of the orders, including amounts and means of pay and conversion of terms, in consultation with the SRC and TSC, and to ensure compliance with the order in Petition 127 of 2014.
  6. 6.The Commissioner of Labour further ordered to be architectural and articulate in implementation and to report back in 120 days.
  7. 7.Mention on 29th June 2021 for a report on execution and implementation by the Commissioner of Labour.
  8. 8.Costs of the claim to be borne by the Respondents.

Authorities

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Legislation

  • Constitution of Kenya, 2010Part II of the Fourth Schedule
  • Employment Act, 2007Sections 2, 7, 8, 9(2), 37(1), 69(a), 87
  • Labour Relations ActSection 69(a) (as referred to in submissions)
  • Basic Education Actnull

Cases cited (3)

  • Edward Ngarega Gacheru v Nation Media Group Limited
    Cause No. 844 of 2018
  • Samuel Wambugu Ndirangu v 2NK Sacco Limited
    (2019) eKLR
  • Petition No. 127 of 2014 - Kenya National Union of Teachers v County Governments of Kenya
    2016 eKLR
Jurisdiction invoked
Section 69(a) of the Employment Act, 2007 (referral of a labour dispute disregarded at conciliation)

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, "Kenya Union of Pre-Primary Education Teachers v Secretary, Laikipia County Public Service Board & another [2021] KEELRC 2075 (KLR)", Case Analysis (2021). Statement of Claim referred under Section 69(a) of the Employment Act (referral from conciliation; related to Cause 216 of 2016 and Cause 14/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2075/eng@2021-02-25

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