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ELRCPartially AllowedELRC Cause No. 222 of 2016· [2022] KEELRC 564 (KLR)

Edward Waka Osare v Inter Security Limited [2022] KEELRC 564 (KLR)

Employment and Labour Relations Court
10 March 2022
1,876 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a security guard's dismissal unfair because his employer had no records proving he was casual or why he was fired, awarding him Kshs. 233,987.

What this practically means

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Executive summary

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The claimant, employed in August 2014 as a night watchman at Kshs. 7,500 per month, alleged he was sent on annual leave on 2 January 2016, turned away on his return, and informed on 11 March 2016 that his services were no longer needed. He claimed unfair termination contrary to sections 41 and 43 of the Employment Act, together with notice pay, leave pay, underpayment of wages per the Regulation of Wages (Amendment) Orders of 2013 and 2015, house allowance, overtime and twelve months' compensation. The respondent admitted employing him but asserted he was a casual employee paid on a daily basis, alleging he reported to work drunk and smashed window panes, and that casual employees were not entitled to notice. At trial, the claimant testified to continuous 12-hour night shifts without rest days and denied the drunkenness allegations. The respondent's director admitted producing no employment records and issuing no termination notice. The court found the claimant's casual status unestablished since no master roll was produced, and held that the respondent failed to prove a valid reason, a fair reason and fair procedure under section 45(2) of the Employment Act, rendering the dismissal unfair and unjustified. The court awarded ten months' salary compensation, underpayment of Kshs. 65,676, house allowance of Kshs. 32,357, one month's notice pay and one year's leave pay, totalling Kshs. 233,987 less statutory deductions. The overtime claim failed for want of records. Costs plus interest from the judgment date were awarded to the claimant.

Key legal issues

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01

Employment status - casual versus regular employment

Holding

The claimant was not established to be a casual employee; the respondent produced no master roll or employment records to prove casual status, and continuous monthly-paid employment for over a month converts under section 37(1).

Reasoning

The respondent asserted casual employment but produced no employment records or master roll. The claimant testified to continuous monthly-paid work for about one year and seven months. The court accepted the claimant's position, relying on section 37(1) of the Employment Act and authorities cited by the claimant, that employment exceeding a month is presumed not to be casual.

p. 3
02

Whether the termination was unfair

Holding

The termination was unfair and unjustified under section 45(2) as the respondent proved neither valid reason nor fair procedure - no notice was issued and no disciplinary hearing was conducted.

Reasoning

The respondent alleged the claimant reported to work drunk and smashed window panes but called no evidence to prove this, and did not produce the master roll to show reporting times. No notice or hearing preceded the termination. The court found the elements of section 45(2) unproved and the dismissal unfair, awarding the maximum remedies including ten months' compensation.

p. 3
03

Overtime claim

Holding

Overtime was not established because no master roll was produced and the claimant did not show he sought its production and was denied.

Reasoning

Although the claimant testified to working 12 hours a day, seven days a week without rest days, the court held that proof of overtime required records. Since no master roll was produced and there was no indication the claimant requested its production from the respondent and was denied, the overtime claim failed.

p. 3

Legal principles established

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  • A termination of employment is unfair where the employer fails to prove a valid reason, a fair reason and a fair procedure
  • An employee who works continuously for more than a month is presumed not to be a casual employee under section 37(1) of the Employment Act
  • An employer alleging misconduct (e.g. drunkenness) bears the burden of proving it, failing which the termination reasons are not established

Court orders

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  1. 1.Respondent to pay the claimant compensation of 10 months' salary (Kshs. 113,300)
  2. 2.Respondent to pay underpayment of salary of Kshs. 65,676
  3. 3.Respondent to pay unpaid house allowance of Kshs. 32,357
  4. 4.Respondent to pay one month's salary in lieu of notice (Kshs. 11,330)
  5. 5.Respondent to pay one year's leave pay (Kshs. 11,330)
  6. 6.Total award of Kshs. 233,987 less statutory deductions
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 2 (definition of casual employee)
  • Employment ActSections 41 and 43
  • Employment ActSection 37(1)
  • Employment ActSection 45(2) and 45(4)(b)
  • Employment Act 2007Section 45(2)
  • Employment and Labour Relations ActSection 12(1) and 12(3)(viii)
  • Regulation of Wages (Amendment) Order2013 and 2015 Orders

Cases cited (3)

  • Harrison Meshack Lusimbo V Mareba Enterprises Limited
    [2013] eKLR
  • Geofrey Shakwia & 17 others Vs Nnachang Foreign Engineering Limited
    [2015] eKLR
  • Thomas Sila Nzivo Vs Bamburi Cement Limited
    [2014] eKLR
Jurisdiction invoked
Sections 12(1) and 12(3)(viii) of the Employment and Labour Relations Act

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, "Edward Waka Osare v Inter Security Limited [2022] KEELRC 564 (KLR)", Case Analysis (2022). ELRC Cause No. 222 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/564/eng@2022-03-10

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