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ELRCPartially AllowedStatement of claim dated June 29, 2017, filed June 30, 2017· [2022] KEELRC 1452 (KLR)

Owuor v Rea Vipingo Plantations Ltd (Cause 529 of 2018) [2022] KEELRC 1452 (KLR)

Employment and Labour Relations Court
9 June 2022
2,141 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a sisal company unfairly ended a piece-rate worker's engagement without 28 days' notice, awarding him Ksh.75,600.

What this practically means

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Executive summary

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The claimant sued the respondent, a sisal company, alleging that he was employed as a casual worker from February 2015 earning Ksh.9,510, later increased to Ksh.10,800 monthly, and that in October 2016 he and ten colleagues were dismissed on redundancy without notice or consultation. He sought one month's salary in lieu of notice, severance pay, accumulated leave, twelve months' compensation for unfair termination, costs and interest. The respondent denied having casual employees, contending that all workers were on contract or piece-rate basis; it asserted that the claimant was a piece-rate employee in the brush room, completed his assigned work, was paid in full, and executed a clearance form on October 14, 2016. The court framed three issues: the nature of the claimant's engagement, whether he was terminated, and entitlement to reliefs. On the evidence, including the claimant's own cross-examination admission, his payslips, the piece-rate payment register and clearance form, the court held that the claimant was a piece-rate employee. It found the reason for ending the engagement valid, but held the process procedurally unfair because the respondent gave no 28 days' notice nor payment in lieu, as required by section 18(1)(b) read with section 35(1)(c) of the Employment Act, relying on Krystalline Salt v Kwekwe Mwakele. Severance pay and accumulated leave were declined. Judgment was entered for the claimant for Ksh.75,600 - one month's notice pay and six months' compensation - subject to statutory deductions under section 49(2), with costs and interest.

Key legal issues

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01

Whether the claimant was a casual or piece-rate employee

Holding

The claimant was a piece-rate employee, as shown by his own testimony, the payslips, the piece-rate payment register and the clearance form.

Reasoning

Section 2 of the Employment Act defines piecework as work paid by amount of work performed, and a casual employee as one engaged for not longer than 24 hours. The claimant admitted under cross-examination he was piece-rated and that his salary varied monthly. He signed the respondent's piece-rate payment register monthly and executed a clearance form as a piece-rate worker without disputing them.

p. 4
02

Whether the claimant was terminated

Holding

The claimant's piece-rate engagement ended on completion of the assigned work and he was paid and cleared; the reason for ending the engagement was not invalid, but the process was procedurally unfair for want of 28 days' notice.

Reasoning

The respondent demonstrated that the claimant completed his piece-rate work, executed a clearance form dated October 14, 2016 and was paid. The claimant did not dispute this. However, no 28 days' notice or payment in lieu was demonstrated, making the severance of the engagement procedurally unfair under section 18(1)(b) read with section 35(1)(c).

p. 5
03

Whether the claimant is entitled to the reliefs sought

Holding

Notice pay and compensation for unfair termination awarded; severance and leave claims declined.

Reasoning

Having found procedural unfairness, the court awarded one month's salary in lieu of notice (accepting the pleaded Ksh.10,800 since neither party addressed the minimum wage) and six months' salary as compensation. Severance pay failed because there was no redundancy, and the leave claim failed because a piece-rate worker is not entitled to accumulated leave.

p. 5

Legal principles established

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  • A piece-rate worker is entitled to 28 days' notice of termination under section 18(1)(b) as read with section 35(1)(c) of the Employment Act, or payment in lieu; failure renders the termination procedurally unfair.
  • Where an employee alleges unfair termination, the evidential burden shifts to the employer to prove valid reason and fair procedure under section 45.

Court orders

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  1. 1.One month salary in lieu of notice of Ksh.10,800
  2. 2.Six months' salary (Ksh.10,800 x 6 = Ksh.64,800) as compensation for unfair termination
  3. 3.Total award of Ksh.75,600, subject to statutory deductions pursuant to section 49(2) of the Employment Act
  4. 4.Costs of the suit and interest to the claimant

Authorities

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Legislation

  • Employment Act 2007section 2
  • Employment Act 2007section 18(1)(b)
  • Employment Act 2007section 35(1)(c)
  • Employment Act 2007section 45
  • Employment Act 2007section 49(2)

Cases cited (1)

  • Krystalline Salt –vs- Kwekwe Mwakele & 67 others
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Owuor v Rea Vipingo Plantations Ltd (Cause 529 of 2018) [2022] KEELRC 1452 (KLR)", Case Analysis (2022). Statement of claim dated June 29, 2017, filed June 30, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1452/eng@2022-06-09

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