Mwiso v Vegpro (K) Limited (Cause 1750 of 2017) [2022] KEELRC 1538 (KLR)
The bottom line
#A Kenyan court ruled that a casual worker of 16 years was automatically a permanent employee, and firing her without proof or a hearing was unfair.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship - casual or regular term employment
The claimant's engagement was converted by operation of law under section 37 of the Employment Act from casual to regular term employment
The claimant worked from January 2000 to December 2016, roughly 16 years. The respondent, as the party responsible for employment records, produced no work attendance records or muster roll to show intermittent engagement. Under section 10(7), the burden of disproving the alleged term of employment lay on the employer. The respondent also trained the claimant and did not challenge her training certificates, which was inconsistent with a purely day-to-day casual engagement. The contract was therefore deemed to be one where wages are paid monthly.
Whether the termination was unfair and unlawful
The termination was unfair and unlawful under sections 41, 43 and 45 of the Employment Act
Having found the claimant was on a regular term contract, the respondent was bound to prove valid reasons for termination and to follow fair procedure. The respondent denied employing the claimant and so led no evidence of abscondment or insubordination, producing no attendance register or supervisor statement. It also conceded it took no steps under section 41. Both substantive justification and procedural fairness were absent, rendering the termination unfair.
Entitlement to reliefs
The claimant was awarded one month's salary in lieu of notice and seven months' gross salary as compensatory damages
Having found unfair termination, the court exercised its discretion to award compensatory damages equivalent to seven months' gross salary and one month's salary in lieu of notice, with interest and costs.
Legal principles established
#- Where an employer fails to produce employment records such as a written contract or work attendance records, the burden of proving or disproving an alleged term of employment falls on the employer under section 10(7) of the Employment Act
- A casual employee who works continuously for a period equivalent to not less than one month has their contract deemed by section 37 of the Employment Act to be one where wages are paid monthly, and this conversion operates by operation of law without application by the employee
- An employer must prove both substantive justification and procedural fairness for a termination under sections 41, 43 and 45 of the Employment Act; failure to lead such evidence renders the termination unfair
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.One month's salary in lieu of notice being the sum of Kshs 15,840/=
- 3.Compensatory damages in the sum of Kshs 110,880/= equivalent to 7 months gross salary calculated at Kshs 528 per day
- 4.Total award of Kshs 126,720/=
- 5.Interest on the total award at court rates from the date of judgment until payment in full
- 6.The claimant shall have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 35, 37, 41, 43, 45, 10(7))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwiso v Vegpro (K) Limited (Cause 1750 of 2017) [2022] KEELRC 1538 (KLR)", Case Analysis (2022). Cause No 1750 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1538/eng@2022-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.