Cypriano Agencies v Katamu (Employment and Labour Relations Appeal E045 of 2022) [2023] KEELRC 1353 (KLR)
The bottom line
#Kenya's Employment Court confirmed that long-serving 'casual' workers automatically gain full employment protection, and employers who skip disciplinary hearings must pay for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent's casual employment converted to a term contract
The claimant's casual employment converted to monthly salary under section 37(1)(a) of the Employment Act and he became protected from unfair termination under section 45
The claimant worked continuously from July 2013 to April 2020, as admitted by the appellant's witness and corroborated by the NSSF statement and the series of renewable contracts. Although each contract described him as a casual worker on daily rates, section 37 deems the contract of a casual employee engaged beyond 24 hours and working the equivalent of a month or more to be one where wages are paid monthly. The court applied the Court of Appeal's reasoning in Nanyuki Water & Sewerage and Chemelil Sugar on conversion by operation of law.
Whether the trial court applied the wrong principles in awarding damages
The termination was unfair for non-compliance with section 41 (notification and hearing); the awards under sections 31 and 49(1) of the Employment Act were justified and not disturbed
The employer's case was summary dismissal for absconding under section 44(4), but it could not prove service of the show cause letter or notice of disciplinary hearing. The trial court found the claimant had been told to stay away pending a medical report, and DW1 agreed he should not be at work. Section 41(2) required the employer to hear and consider representations before summary dismissal. Having converted to a permanent contract, the claimant was entitled to procedural fairness; notice pay, house allowance and 12 months' compensation fell within section 49(1).
Legal principles established
#- A casual employee engaged continuously for the equivalent of not less than one month, or on work not reasonably completable within three months, is by operation of section 37 of the Employment Act deemed to be employed on monthly wages and protected from unfair termination under section 45
- Even a fixed-term contract employee is entitled to procedural fairness under section 41 of the Employment Act in the event of termination during the contract period
Court orders
#- 1.The judgment of Hon. Njalale in Butali CM ELRC No. E013 of 2021 delivered on 6th October 2022 is upheld in its entirety
- 2.The appeal is dismissed with costs to the respondent
- On appeal from
- Magistrates' Court (CMELRC), Butali
- CMELRC No. E013 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's decision in an employment claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cypriano Agencies v Katamu (Employment and Labour Relations Appeal E045 of 2022) [2023] KEELRC 1353 (KLR)", Case Analysis (2023). Appeal from Butali CMELRC No. E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1353/eng@2023-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.