Kennedy Ochieng Owala & another v Booth Extrussions Limited [2022] KEELRC 667 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Status of the Claimants at termination - casual or regular employees
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
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.
Whether the termination was unlawful and unfair
Termination was unfair and unlawful as the Respondent failed to prove a valid and fair reason and gave no notice or hearing
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.
Entitlement to remedies
Claimants awarded notice pay, accrued annual leave, days worked and 5 months' compensation; unquantified heads declined for lack of proof
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the Claimants
- 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/=)
- 3.2nd Claimant awarded Kshs.279,580/= on the same heads
- 4.Costs awarded to the Claimants from the Respondent
- 5.Interest from the date of judgment until full payment
- 6.Certificate of service to issue to each Claimant
- 7.Alternative prayers for reinstatement declined
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12 (original employment jurisdiction); Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.