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ELRCPartially AllowedCause No. 107 of 2018· [2022] KEELRC 992 (KLR)

Joseph Kipkurui Chirchir v Mogogosiek Tea Factory Co. Ltd [2022] KEELRC 992 (KLR)

Employment and Labour Relations Court
18 January 2022
OMOnesmus N Makau
1,567 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan tea factory worker won notice pay but lost his unfair dismissal claim because his seasonal contract had simply expired by its own terms.

What this practically means

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Executive summary

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The claimant sued the respondent tea factory alleging unlawful dismissal from employment in January 2018 and sought Kshs 3,091,665, unpaid salary, constitutional damages, interest, a certificate of service, reinstatement and costs. The respondent denied dismissal, contending the claimant was engaged on 3-month seasonal contracts that lapsed automatically by effluxion of time, and that he was never permanent staff under the CBA. The parties adopted pleadings, witness statements and documents and disposed of the suit by written submissions. The court framed three issues: the nature of the employment, whether there was dismissal or automatic expiry, and entitlement to reliefs. Relying on the claimant's NSSF registration card dated 12/2/1985, staff ID and NSSF statement, and noting the employer's failure to produce full records despite its custody of them under section 74 of the Employment Act, the court found the claimant was a permanent employee until June 2010 and thereafter engaged on successive 3-month seasonal contracts punctuated by breaks. The claimant failed to discharge the burden under section 47(5) of proving unfair dismissal and did not rebut the seasonal contract at separation; the court accepted that the contract expired automatically. Judgment was entered only for 28 days' salary in lieu of notice (Kshs 20,090) under Clause 22(c)(ii) of the CBA. Claims for leave and gratuity were declined as time barred or barred by NSSF contributions under section 35(6); reinstatement, compensation and constitutional damages were refused. The claimant received costs plus interest from filing.

Key legal issues

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01

Nature of employment: permanent or seasonal

Holding

Claimant was a permanent employee until June 2010, thereafter engaged on successive 3-month fixed-term seasonal contracts punctuated by breaks until January 2018, in line with Clause 22 of the CBA

Reasoning

The claimant's NSSF registration card dated 12/2/1985 and NSSF statement showed employment predating 2014, disproving the respondent's assertion that he was engaged only from June 2014. The employer, as custodian of records under section 74 of the Employment Act, produced only one contract and two pay slips, a concealment adverse to its case. However, the NSSF statement showed continuous employment only to June 2010, after which engagements were seasonal.

p. 2
02

Whether there was unlawful dismissal

Holding

No dismissal occurred; the last seasonal contract expired automatically by effluxion of time and the claimant failed to discharge the burden under section 47(5)

Reasoning

The burden of proving unfair dismissal rests on the employee under section 47(5) of the Employment Act. The claimant did not rebut the existence of a 3-month seasonal contract at separation, called no supporting witness, and did not explain the circumstances of the termination. The court therefore accepted the employer's evidence that the contract lapsed automatically on expiry of the agreed period.

p. 2
03

Entitlement to notice pay under the CBA

Holding

Seasonal employees completing three consecutive months are entitled to 28 days' notice or pay in lieu under Clause 22(c)(ii); Kshs 20,090 awarded

Reasoning

Although no unfair dismissal was established, the applicable CBA granted seasonal employees who served three consecutive months 28 days' notice or pay in lieu. The claimant served his full 3-month seasonal term, so the contractual benefit survived the finding on termination and was quantified at the last salary paid.

p. 3

Legal principles established

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  • The burden of proving unfair or wrongful dismissal lies on the employee under section 47(5) of the Employment Act
  • Employment records are in the custody of the employer under section 74 of the Employment Act and the employer should produce them to disprove an employee's claim
  • Failure by the employer to produce complete employment records amounts to deliberate concealment of material facts

Court orders

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  1. 1.Judgment entered for the claimant for Kshs 20,090 less statutory deductions being 28 days' salary in lieu of notice under Clause 22(c)(ii) of the CBA
  2. 2.Claimant awarded costs of the suit
  3. 3.Interest at court rate from the date of filing the suit

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 47(5)
  • Employment Actsection 74
  • Employment Actsection 35(6)
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)
  • Collective Bargaining AgreementClause 22

Cases cited (3)

  • Rashid Odhiambo and 245 others v Haco Industries Limited
    [2015] eKLR
  • Persteeno Omondi v Steal Makers Limited
    [2017] eKLR
  • Emmanuel Musembi Nthambi v Tamar Wire Products Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance unfair termination claim)

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, "Joseph Kipkurui Chirchir v Mogogosiek Tea Factory Co. Ltd [2022] KEELRC 992 (KLR)", Case Analysis (2022). Cause No. 107 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/992/eng@2022-01-18

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