Kenya Shoes & Leather Workers Union v Modern Soap Factory (Cause 615 of 2014) [2023] KEELRC 48 (KLR)
The bottom line
#A Kenyan court ruled that workers hired as casuals become permanent employees by law, and sacking them without a hearing or valid reason costs employers real money.
What this practically means
#Executive summary
#Key legal issues
#Status of the grievants' employment (casual vs term contract)
Though initially engaged as casuals, the grievants' contracts were converted by operation of section 37(1) and (3) of the Employment Act into term contracts with monthly wages
The respondent pleaded casual engagement, but its own witness admitted the grievants worked daily as Machine Operators. Section 37(1) deems a casual's contract to be one with monthly wages where the employee works for a period equivalent to at least one month, and section 37(3) entitles such an employee to the statutory terms and conditions of service applicable had they not been employed as a casual.
Whether the grievants' termination was unfair
Termination was both procedurally and substantively unfair: no compliance with section 41 and no proved reason under section 43(1)
The court accepted the grievants' evidence that they were dismissed for alleged sleeping at work, yet no disciplinary process was undertaken and no opportunity to be heard was given. The respondent did not even allege compliance with section 41. Further, the respondent failed to prove any valid reason for the termination, so the dismissals failed both the procedural and substantive fairness tests under sections 41, 43 and 45 of the Employment Act.
Reliefs payable
Each grievant awarded eight months' salary as compensation for unfair termination plus one month's salary in lieu of notice; leave pay declined as unproved; certificates of service ordered
The court held parties bound by their pleadings and used the pleaded salary of Ksh. 11,085 per month rather than the daily rates deponed to by the respondent's witness. Compensation was fixed at eight months' salary. The claim for two years' leave pay failed for want of proof, while notice pay and certificates of service were allowed.
Legal principles established
#- Casual contracts that meet the thresholds in section 37(1) of the Employment Act convert by operation of law to term contracts with monthly wages
- Termination without compliance with section 41 procedural requirements is unfair
- An employer bears the burden of proving the reason for termination; failure renders the termination unfair under section 45
Court orders
#- 1.Judgment entered for the claimant against the respondent: Ksh. 99,765 for the 1st grievant (Ksh. 88,680 compensation for unfair termination plus Ksh. 11,085 one month's salary in lieu of notice)
- 2.Judgment entered for the claimant against the respondent: Ksh. 99,765 for the 2nd grievant (Ksh. 88,680 compensation for unfair termination plus Ksh. 11,085 one month's salary in lieu of notice)
- 3.Respondent to issue certificates of service to the 1st and 2nd grievants under section 51(1) of the Employment Act within thirty days of judgment
- 4.Claimant awarded costs of the suit and interest at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (grievants' claims referred under section 73(1) of the Labour Relations Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shoes & Leather Workers Union v Modern Soap Factory (Cause 615 of 2014) [2023] KEELRC 48 (KLR)", Case Analysis (2023). Cause No 615 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/48/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.