Sheila Wikashei Wikama & another v Super Broom Services Limited [2022] KEELRC 828 (KLR)
The bottom line
#A Kenyan court found a cleaning company unfairly sacked two workers and ordered compensation because it couldn't prove their contracts had genuinely expired.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants were unfairly terminated or their contracts lapsed by effluxion of time
The Respondent failed to establish fixed term contracts that lapsed; it unfairly terminated the Claimants' employment without reason or procedure.
The Respondent's evidence on the fixed term defence was internally inconsistent: the third-party contracts on record (Baptist Church to July 2014; NSSF to September 2015) had lapsed seven months before the Claimants left in April 2016, the alleged extension was unproved, the Claimants' own contracts had a commencement but no end date and did not incorporate the third-party contracts, and the Respondent gave contradictory accounts (lapse versus absconding). No reason or procedure for termination was established, so Sections 41, 43 and 45 were breached.
Whether the Claimants were underpaid
Both Claimants were paid below the statutory minimum wage for cleaners under the applicable Wages Orders and were awarded the shortfalls.
The Court applied the operative Regulation of Wages (General) (Amendment) Orders for 2012, 2013 and 2015 to the salary history proved by the Claimants. The 1st Claimant earned Kshs.6,000, then 7,000, then 9,180, and the 2nd Claimant a flat Kshs.7,990, all below the prescribed minimums, establishing underpayment of Kshs.79,048.20 and Kshs.26,864.25 respectively.
Whether the Claimants were entitled to house allowance
House allowance was payable because the contracts provided 'fixed' salary and did not expressly consolidate house allowance as permitted by Section 31 of the Employment Act.
Section 31 offers an employer three options: provide housing, pay a rent sum, or expressly consolidate a housing element in the wage. The contracts stated only a 'fixed salary', which is not synonymous with consolidated pay, and the Respondent issued no itemised pay slips to prove consolidation. Distinguishing Grain Pro Kenya, the Court computed house allowance at 15% of salary as claimed.
Whether the Claimants were entitled to overtime pay
The overtime claim failed as the Claimants worked only 45 hours weekly after breaks and adduced no evidence of extra hours.
Both Claimants confirmed on cross-examination that their 6.30 am to 4.00 pm day included a one-hour lunch break and a 30-minute tea break, yielding 45 hours per week, within lawful limits. The burden lay on the Claimants to prove accrued additional hours, which they did not discharge.
What compensation for unfair termination was due under Section 49
One month's pay in lieu of notice to both Claimants and four months' and two months' salary compensation respectively, having regard to length of service and relevant Section 49(4) factors.
The Court exercised its Section 49 discretion considering that the 1st Claimant served three years and eight months and the 2nd Claimant one year and two months, that the Claimants knew the Respondent's business depended on secured cleaning contracts, that they wished to continue working, and that they led no evidence on post-termination events.
Legal principles established
#- A termination of employment must satisfy both substantive justification and procedural fairness under Sections 41, 43, 45 and 47(5) of the Employment Act, otherwise it is unfair.
- Fixed term contracts carry no rights, obligations or expectations beyond the date of expiry, and an employer need not give reasons for non-renewal beyond effluxion of time.
- An employer alleging that employment was dependent on a third-party contract must prove that contract and its lapse; extension of a contract must be supported by documentary evidence.
- The terms 'fixed' and 'consolidated' salary are not synonymous; Section 31 of the Employment Act requires an express consolidation clause for house allowance to be deemed included.
- Where an employee absconds duty, the employer must take reasonable steps to establish contact before treating the employment as closed.
Court orders
#- 1.Judgment entered in favour of the 1st Claimant for Kshs.191,011.17 (underpayment Kshs.79,048.20; house allowance Kshs.63,058.22; pay in lieu of notice Kshs.9,780.95; compensation Kshs.39,123.80)
- 2.Judgment entered in favour of the 2nd Claimant for Kshs.78,213.91 (underpayment Kshs.26,864.25; house allowance Kshs.22,006.81; pay in lieu of notice Kshs.9,780.95; compensation Kshs.19,561.90)
- 3.The Respondent directed to issue both Claimants certificates of service for the duration served
- 4.The Claimants awarded costs of the suit
- 5.Interest at Court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Article 162(2) basis implied; not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Otieno v Ison Technologies Kenya Limited (Cause E509 of 2022) [2023] KEELRC 2924 (KLR)[2023] KEELRC 2924 (KLR)16 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Sheila Wikashei Wikama & another v Super Broom Services Limited [2022] KEELRC 828 (KLR)", Case Analysis (2022). Statement of claim dated 9th September 2016, filed 14th September 2016 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/828/eng@2022-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.