Kasera & 10 others v Bidco Africa Limited (Cause 2147 of 2016) [2022] KEELRC 1566 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Status of the Claimants' employment
The Claimants were regular employees, not casual labourers, by operation of section 37 of the Employment Act
NSSF statements and pay slips showed continuous remittances over years, with NHIF, NSSF and PAYE deductions inconsistent with casual engagement. The court held this proved a long-lasting relationship and that section 37 deemed the contracts to be monthly contracts. Labels such as 'casual' could not displace the substance of continuous employment for years.
Termination versus desertion
The Claimants did not desert; the Respondent locked them out and the termination was unlawful and unfair
The Respondent's account that all long-serving employees voluntarily failed to report for redeployment was found unbelievable. No effort was made to reach out as required where desertion is alleged, and the Respondent's contradictory position - telling the Union the Claimants were not employees while pleading non-appearance for work - undermined its case.
Entitlement to CBA benefits
The Claimants were members of the Kenya Chemical and Allied Workers Union entitled to rely on the CBA
Union subscription receipts and the Union's letter of 26th March 2015 affirming membership satisfied the court that the Claimants were Union members, notwithstanding the Respondent's reliance on the East Africa Portland Cement case on non-payment of dues.
Reliefs payable
Notice pay, house allowance and compensatory damages awarded; leave, overtime, service gratuity and baggage allowance disallowed
Having found unlawful and unfair termination, the court awarded notice pay and compensatory damages scaled to each Claimant's length of service (3 to 11 months). House allowance was awarded as the Respondent failed to demonstrate payment. Heads of special damages not specifically proved were disallowed despite the finding of unfair termination.
Legal principles established
#- Continuous employment beyond the statutory period converts casual employment into a monthly contract under section 37 of the Employment Act irrespective of the label used
- An employer alleging desertion must demonstrate efforts to reach the employee and put them on notice before termination
Court orders
#- 1.Judgment entered for the Claimants whose termination was found unlawful, unfair and unprocedural
- 2.Payment to each Claimant of one month's salary in lieu of notice of Kshs 26,340
- 3.Payment to each Claimant of unpaid house allowance at 15% of salary for the duration of service in sums particularised per Claimant
- 4.Payment of compensatory damages for wrongful and unlawful dismissal of varying months' gross salary per Claimant (from 3 to 11 months), totalling the sums stated per Claimant (aggregate approximately Kshs 7,363,650)
- 5.Dismissal of claims for accrued leave, overtime, service gratuity and baggage/luggage allowance for lack of specific proof
- 6.Costs awarded to the Claimants
- 7.Interest from the date of judgment until payment in full
- 8.Each Claimant to be issued a certificate of service within 14 days
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act, 2007 (no specific constitutional article invoked as basis of jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasera & 10 others v Bidco Africa Limited (Cause 2147 of 2016) [2022] KEELRC 1566 (KLR)", Case Analysis (2022). Not stated in the judgment (Employment and Labour Relations Court cause, memorandum of claim dated 12th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1566/eng@2022-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.