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ELRCPartially AllowedNot stated in the judgment text· [2022] KEELRC 667 (KLR)

Kennedy Ochieng Owala & another v Booth Extrussions Limited [2022] KEELRC 667 (KLR)

Employment and Labour Relations Court
10 February 2022
2,062 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that long-serving 'casual' workers are legally permanent, and firing them by phone without notice or a hearing is unfair.

What this practically means

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Executive summary

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Two claimants, Kennedy Ochieng Owala and Johnson (Julius) Odhiambo Opande, sued their former employer claiming they were employed in January 2009 and July 2008 as a turn man, paid daily wages, and were terminated by telephone on 26th August 2014 by the Respondent's factory manager without reason, notice or hearing. They claimed unpaid house allowance, NSSF/NHIF remittances, leave, public holiday and rest day overtime pay, days worked in August 2014, payment in lieu of notice, compensation, and alternatively reinstatement, quantifying their claims at Kshs.1,209,452/= and Kshs.2,447,286.40/= respectively. The Respondent contended they were casual workers paid Kshs.628/= inclusive of 15% house allowance, whose engagement ended on 26th August 2014 after an unnamed customer raised a verbal integrity issue, and that it lawfully chose not to re-engage them. The court framed three issues: the Claimants' status, the lawfulness of the termination, and entitlement to remedies. Applying Sections 2 and 37 of the Employment Act, it held that continuous work exceeding one month converted their casual status to regular monthly employment by operation of law. On the evidence, the Respondent adduced nothing to controvert the employment dates, called no witness, and never specified the alleged integrity issue. Applying Sections 43, 45 and 41, the court found the termination substantively and procedurally unfair. Judgment was entered for the Claimants: each received one month's notice pay (Kshs.20,280/=), seven years' annual leave (Kshs.141,000/=), days worked (Kshs.16,900/=) and five months' compensation (Kshs.101,400/=), totalling Kshs.278,180/= and Kshs.279,580/= respectively, with costs and interest. Claims for house allowance, public holidays, rest days, NSSF/service pay and baggage were declined for lack of proof, and reinstatement was declined as over three years had elapsed under Section 12 of the Employment and Labour Relations Court Act. Certificates of service were ordered to issue.

Key legal issues

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01

Status of the Claimants at termination - casual or regular employees

Holding

Having worked continuously for over six years each, the Claimants' casual status converted by operation of law under Section 37 of the Employment Act to regular monthly employment

Reasoning

Section 2 defines a casual employee as one paid at the end of each day and not engaged for longer than 24 hours at a time. Section 37 deems a casual who works for the equivalent of not less than one month to be a monthly-paid employee under Section 35(1)(c). The Respondent gave no evidence controverting the Claimants' evidence of employment from 2008/2009 until 26th August 2014. Authorities cited by the court support conversion by operation of law.

p. 2
02

Whether the termination was unlawful and unfair

Holding

Termination was unfair and unlawful as the Respondent failed to prove a valid and fair reason and gave no notice or hearing

Reasoning

Section 45 requires the employer to prove a valid and fair reason and fair procedure. The Claimants were terminated by telephone without any reason, notice or hearing. The Respondent merely alleged vaguely that an integrity issue had been raised by a customer, did not call a witness, and did not specify the issue or the person accused. Section 41 procedural requirements were not met, and Sections 35 and 45 barred termination without 28 days' written notice and a valid reason.

p. 3
03

Entitlement to remedies

Holding

Claimants awarded notice pay, accrued annual leave, days worked and 5 months' compensation; unquantified heads declined for lack of proof

Reasoning

The court awarded payment in lieu of notice, annual leave (uncontroverted), days worked in August 2014 and compensation for wrongful dismissal equivalent to five months. Heads such as house allowance, public holidays, rest days, NSSF/service pay and baggage were declined because the Claimants failed to produce records or workings substantiating the figures claimed.

p. 3

Legal principles established

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  • A casual employee who works continuously for the equivalent of not less than one month is by operation of law under Section 37 of the Employment Act converted into a monthly-paid employee to whom Section 35(1)(c) applies
  • An employer bears the burden of proving both valid reason and fair procedure for termination; failure to prove the reason renders the termination unfair
  • Fair procedure under Section 41 requires that the employee be heard in the presence of a fellow employee or shop floor steward

Court orders

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  1. 1.Judgment entered in favour of the Claimants
  2. 2.1st Claimant awarded Kshs.278,180/= comprising one month payment in lieu of notice (Kshs.20,280/=), annual leave for 7 years (Kshs.141,000/=), days worked to 25th August 2014 (Kshs.16,900/=) and compensation for wrongful dismissal of 5 months (Kshs.101,400/=)
  3. 3.2nd Claimant awarded Kshs.279,580/= on the same heads
  4. 4.Costs awarded to the Claimants from the Respondent
  5. 5.Interest from the date of judgment until full payment
  6. 6.Certificate of service to issue to each Claimant
  7. 7.Alternative prayers for reinstatement declined

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 37
  • Employment ActSection 35 (1)(c)
  • Employment ActSection 45
  • Employment ActSection 43
  • Employment ActSection 41
  • Employment and Labour Relations Court ActSection 12
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Wages (General) Amendment Order (2013 - 2014)not stated

Cases cited (3)

  • FRANCIS NDIRANGU VS BETTY WAIRIMU MAINA
    CASE 252 OF 2017
  • SILAS VS CARGO HANDLING SERVICES LIMITED
    (2013) eKLR
  • WALTER OGAL ANURO VS TEACHERS SERVICE COMMISSION
    955 OF 2011
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (original employment jurisdiction); Employment 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, "Kennedy Ochieng Owala & another v Booth Extrussions Limited [2022] KEELRC 667 (KLR)", Case Analysis (2022). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/667/eng@2022-02-10

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