Edward Waka Osare v Inter Security Limited [2022] KEELRC 564 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Employment status - casual versus regular employment
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).
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.
Whether the termination was unfair
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.
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.
Overtime claim
Overtime was not established because no master roll was produced and the claimant did not show he sought its production and was denied.
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.
Legal principles established
#- 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
#- 1.Respondent to pay the claimant compensation of 10 months' salary (Kshs. 113,300)
- 2.Respondent to pay underpayment of salary of Kshs. 65,676
- 3.Respondent to pay unpaid house allowance of Kshs. 32,357
- 4.Respondent to pay one month's salary in lieu of notice (Kshs. 11,330)
- 5.Respondent to pay one year's leave pay (Kshs. 11,330)
- 6.Total award of Kshs. 233,987 less statutory deductions
- 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Sections 12(1) and 12(3)(viii) of the Employment and Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.