Hudson Mwambogho Rughendo v Brollo Kenya Limited [2022] KEELRC 367 (KLR)
The bottom line
#A Kenyan court ruled that a worker 'casually' employed for 10 years deserved full statutory rights and nearly Kshs.1 million for unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Existence and nature of the contract of service
The claimant was in unbroken employment from February 2007 to 15.05.2017; the casual designation converted to statutory minimum terms under section 37 of the Employment Act; the alleged piece-work arrangement did not exist.
The respondent admitted 10 years of service, daily wages paid weekly and NSSF deductions from July 2010. RW conceded in cross-examination that employment over three months turns permanent. The respondent pleaded piece-work but adduced no evidence of the unit of measure or agreed rate per unit, so the piece-rate case failed.
Entitlement to Artisan Grade III wages
The claimant worked as a Grade III Artisan, Fitter and was entitled to the minimum statutory wage for that designation.
The court found the claimant attached his Trade Test Grade III certificate to his 2007 application, performed work similar to Gitonga whose terms were regularised, and was in-charge of maintenance in his department. It defeated all logic that Gitonga qualified as Grade III but the claimant did not.
Fairness of the termination
The termination was unfair in both substance and procedure.
RW summoned the claimant by word of mouth, met him alone without an agenda, gave no notice or hearing as required by section 41, never disclosed particulars of the alleged incitement, and required the claimant to disprove empty allegations. The real reason was the claimant's genuine grievance about underpayment, overtime and casual terms, which is unlawful under section 46(h).
Remedies
The claimant was awarded the maximum 12 months' compensation under section 49, notice pay, certificate of service, underpayment for May 2017, service pay, underpayment throughout service and leave pay.
The court considered the section 49 factors: over 10 years of clean service was a mitigating factor, while placing the claimant on casual terms with wrong designation and underpayment was aggravating. The service pay claim was limited to the period before NSSF deductions commenced in July 2010.
Legal principles established
#- Casual employment that is unbroken over time converts to employment on minimum statutory terms and conditions under section 37 of the Employment Act.
- An employer who pleads piece-work must plead and prove the unit of measure and the agreed rate per unit; failing which no piece-work arrangement is found to exist.
- Termination on unparticularised, unsubstantiated allegations, without notice or hearing, is unfair under sections 41, 43 and 45 of the Employment Act.
- Dismissing an employee for raising a genuine complaint against the employer is unlawful under section 46(h) of the Employment Act.
Court orders
#- 1.The respondent to deliver the certificate of service by 01.05.2022
- 2.Declaration that the claimant ought to have been paid wages based on the wage levels of an Artisan Grade III
- 3.Declaration that the termination of the claimant's employment was unfair
- 4.The respondent to pay the claimant terminal dues as claimed Kshs.995,344.23 by 02.06.2022, failing interest at Court rates from the date of judgment until full payment
- 5.The respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance memorandum of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hudson Mwambogho Rughendo v Brollo Kenya Limited [2022] KEELRC 367 (KLR)", Case Analysis (2022). Cause No 929 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/367/eng@2022-04-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.