Workers & another v Frankmart Supermarket Limited & another (Cause 18 of 2021) [2023] KEELRC 28 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the proper respondent was sued
The name discrepancy (Frankmart vs Frankmatt) was a curable typing error; the case proceeded against Frankmatt Supermarket Limited which had defended the suit
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.
Whether the grievant was a casual employee
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
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.
Whether the grievant terminated his services
Yes; he resigned due to the indefinite unpaid leave, which on the evidence would equally amount to constructive dismissal
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.
Whether the grievant was discriminated against
No; the claim failed for want of proof
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.
Whether the grievant was underpaid
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
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.
Entitlement to reliefs
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
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.
Legal principles established
#- 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
#- 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.Interest at court rates from date of judgment until payment in full
- 3.Certificate of service to issue to the grievant under section 51 of the Employment Act
- 4.Each party to bear own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.