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ELRCPartially AllowedELRC Cause dated May 18, 2022 (number not stated in judgment)· [2023] KEELRC 28 (KLR)

Workers & another v Frankmart Supermarket Limited & another (Cause 18 of 2021) [2023] KEELRC 28 (KLR)

Employment and Labour Relations Court
19 January 2023
3,289 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that casual workers employed continuously for over a month earn full statutory benefits and awarded a baker terminal dues worth roughly KES 64,730.

What this practically means

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Executive summary

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The Bakers Union sued on behalf of grievant Clayton Jumba, a former bakery worker, claiming terminal benefits of KES 299,349.32 comprising notice pay, May 2020 wages, public holiday and rest day pay, leave arrears, overtime, underpayments, a declaration of discrimination, costs and a certificate of service. The respondent, Frankmatt Supermarket Limited (sued as Frankmart), denied the claim, asserting the grievant was a casual employed on February 15, 2019, that he stole the register and contract forms, and that he left voluntarily after failing to produce a food handler's medical certificate. The court framed six issues. It held the name discrepancy was a curable typographical error under article 159(3)(d) of the Constitution. Although the grievant was engaged without a written contract, the court found he worked continuously, was treated as a contractual employee, and his employment was converted under section 37 of the Employment Act, entitling him to statutory benefits; treating him as non-permanent while subjecting him to discipline and unpaid leave was an unfair labour practice, following the Court of Appeal in Kenyatta University v Esther Njeri Maina. The court found the grievant resigned due to indefinite unpaid leave (alternatively constructive dismissal), that discrimination was not proved, and that he was not underpaid, earning above the applicable minimum wage. The renewal letter relied on by the claimant was held inadmissible, the court accepting it was likely stolen. Awards: May 2020 salary KES 15,300; 16 days public holiday pay KES 18,830; 2019 leave arrears KES 15,300; service pay KES 15,300; interest at court rates; and a certificate of service. Notice pay, the discrimination declaration, and the rest day and overtime claims were dismissed. Each party was ordered to bear its own costs, the court finding the suit premature as conciliation was not earnestly pursued.

Key legal issues

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01

Whether the proper respondent was sued

Holding

The name discrepancy (Frankmart vs Frankmatt) was a curable typing error; the case proceeded against Frankmatt Supermarket Limited which had defended the suit

Reasoning

The respondent did not deny employing the grievant; it only pointed out that its registered name was Frankmatt Supermarket Limited, not Frankmart as pleaded. Documentary evidence, including documents produced by the respondent itself, referred to Frankmatt Supermarket Limited. The court held the defect was a typographical error curable under article 159(3)(d) of the Constitution and determined the claim against the correct entity.

p. 4
02

Whether the grievant was a casual employee

Holding

No; although engaged without an employment letter, he was treated as a contractual employee and his employment converted under section 37 of the Employment Act

Reasoning

The grievant worked continuously from February 15, 2019, was subjected to disciplinary warnings and unpaid leave letters like a permanent employee, and was paid a monthly salary. The respondent had no evidence of weekly casual payments. Under section 37 of the Employment Act, continuous work beyond one month converts casual employment into a term contract, entitling the grievant to statutory benefits.

p. 5
03

Whether the grievant terminated his services

Holding

Yes; he resigned due to the indefinite unpaid leave, which on the evidence would equally amount to constructive dismissal

Reasoning

The grievant issued a termination letter dated May 26, 2020 referring to unpaid leave, which the respondent admitted. RW1 said the grievant had secured other employment; the grievant said he left the letter at customer care and there was no proof of delivery. On a balance of probabilities the court found he resigned because of the indefinite unpaid leave, and that the alternative characterisation would be constructive dismissal, adopting the claimant's position.

p. 6
04

Whether the grievant was discriminated against

Holding

No; the claim failed for want of proof

Reasoning

The claimant alleged the respondent settled with one Thomas Makau and excluded the grievant. The respondent admitted settling with Makau but said the grievant was not part of that settlement. The claimant adduced no evidence of discrimination, and the burden of proof lay with the claimant, so the claim was dismissed.

p. 6
05

Whether the grievant was underpaid

Holding

No; he was paid KES 15,300 monthly, above the minimum wage of KES 11,602.90 for a bakery worker in the 'other areas' category under the 2018 General Wages Order

Reasoning

The grievant testified he was paid KES 15,300 monthly and the employer produced no evidence of weekly payments, so the burden under section 47(5) shifted and was not discharged. However, applying the 2018 General Wages Order to his Mumias branch position as a cook attendant in the bakery, the applicable minimum fell under 'other areas' at KES 11,602.90, below what he was paid.

p. 6
06

Entitlement to reliefs

Holding

Partially allowed: May 2020 salary, 16 days public holiday pay, 2019 leave arrears, and service pay awarded; notice pay, discrimination declaration, rest days and overtime claims dismissed

Reasoning

Because the grievant resigned, notice pay fell away. He was awarded a full May 2020 salary since resignation was effective June 2020; public holiday pay was granted as unrebutted with the employer bearing the statutory record-keeping duty under section 74; leave arrears were limited to 2019; and service pay for 15 days per section 35(5) was granted. Rest day and overtime claims were dismissed as afterthoughts absent from the conciliation record.

p. 7

Legal principles established

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  • A casual employee who works continuously for the equivalent of not less than one month is deemed under section 37 of the Employment Act to be on a monthly term contract entitled to statutory benefits
  • Treating an employee as non-permanent while subjecting them to disciplinary processes and unpaid leave amounts to unfair labour practice
  • Once an employee leads evidence of the wage paid, the burden shifts to the employer under section 47(5) of the Employment Act to produce records controverting it
  • A misdescription of a party's name that is a typing error is curable under article 159(3)(d) of the Constitution

Court orders

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  1. 1.Judgment for the claimant against Frankmatt Supermarket Limited for payment of terminal dues: May 2020 salary KES 15,300; 16 days of public holidays worked and not paid for KES 18,830; leave in arrears for year 2019 KES 15,300; service pay at 15 days for complete year worked KES 15,300
  2. 2.Interest at court rates from date of judgment until payment in full
  3. 3.Certificate of service to issue to the grievant under section 51 of the Employment Act
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(3)(d)
  • Employment ActSection 37 (Conversion of casual employment to term contract)
  • Employment ActSection 35(1)(c) and 35(5) (service pay)
  • Employment ActSection 47(5)
  • Employment ActSection 51 (certificate of service)
  • Employment ActSection 74 (employer's duty to keep records)
  • Employment ActDefinitions of 'employee' and 'casual employee'
  • General Wages Order (2018)Minimum monthly wage for bakery worker, 'other areas' category

Cases cited (1)

  • Kenyatta University And Esther Njeri Maina, Nairobi Civil Appeal No 261 of 2017
    Civil Appeal No 261 of 2020 (as cited in judgment); judgment delivered November 4, 2022
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim referred following conciliation under the Labour Relations Act process)

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, "Workers & another v Frankmart Supermarket Limited & another (Cause 18 of 2021) [2023] KEELRC 28 (KLR)", Case Analysis (2023). ELRC Cause dated May 18, 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/28/eng@2023-01-19

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