Makau v Dinesh Construction Limited (Cause 886 of 2017) [2023] KEELRC 1307 (KLR)
The bottom line
#A Kenyan court ruled that a 'casual' worker who works continuously for over a month becomes a permanent-term employee entitled to fair dismissal procedures and compensation.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimant: casual or term employee
Having worked for 11 continuous months, the Claimant's casual contract converted to a term contract under section 37 of the Employment Act
The Respondent's own witness confirmed the Claimant worked for almost eleven months from July 2015 to May 2016. Section 37(1) deems a casual employee's contract converted where continuous working days aggregate the equivalent of not less than one month. The Claimant thus became entitled to the benefits of a term employee, though his pay was held to be inclusive of house allowance.
Whether the termination was unfair
The dismissal was without cause and without a hearing, contrary to section 41 of the Employment Act and natural justice, entitling the Claimant to notice pay and compensation
The secretary dismissed the Claimant without notice or reasons, and no effort was made to call him back to show cause after his absence. The converted contract required one month's notice. The court held the termination unlawful and awarded notice and two months' compensation, rejecting the maximum award given the modest circumstances of the case.
Entitlement to overtime
The overtime claim failed as the Respondent's records showed overtime was paid when due
The Respondent's bundle showed an entry for overtime of Kshs 4,315 against the Claimant's name, and the Claimant confirmed on cross-examination he was compensated for overtime for a given week. The court held that any further overtime award would amount to double compensation.
Legal principles established
#- Where a casual employee works continuously for the equivalent of not less than one month, the contract is deemed by section 37 of the Employment Act to be one where wages are paid monthly
- Termination without cause and without a hearing in terms of section 41 of the Employment Act and natural justice is unlawful, entitling the employee to notice and compensation
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for one month's salary as notice – Kshs 16,800/-
- 2.Two months' salary as compensation – Kshs 33,600/-
- 3.Costs capped at Kshs 20,000/-
- 4.Interest on the notice pay and compensation at court rates from date of judgment till payment in full
- 5.Issuance of a Certificate of Service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau v Dinesh Construction Limited (Cause 886 of 2017) [2023] KEELRC 1307 (KLR)", Case Analysis (2023). ELRC Claim dated May 2, 2017 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1307/eng@2023-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.