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ELRCPartially Allowed· [2023] KEELRC 2539 (KLR)

Ibrahim v Reliance Hospital Limited (Employment and Labour Relations Cause E816 of 2021) [2023] KEELRC 2539 (KLR)

Employment and Labour Relations Court
19 October 2023
BMB. O. M. Manani
2,694 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even temporary locum nurses get notice, reasons, and a hearing before early dismissal, awarding the nurse Ksh. 225,000.

What this practically means

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Executive summary

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The Claimant, a nurse hired by the Respondent hospital on 3rd June 2021, had her services terminated on 18th June 2021, sixteen days into the engagement, following an accusation that she slept on duty while caring for a pre-term baby and an expectant mother. The court framed three issues: the nature of the employment relationship, whether the termination was regular, and entitlement to reliefs. On the first issue, the court held that although the Claimant was to be paid monthly, this did not imply indefinite employment; her own letter of 24th June 2021 acknowledged she served on locum basis, which is temporary and consistent with casual employment, following Josphat Njuguna v High Rise Self Group and Rika J's observations in Kenya National Union of Nurses. On the second issue, the court found that a casual paid monthly acquires section 35 notice protection under the Employment Act, per Rashid Odhiambo Allogoh v Haco Industries, entitling her to not less than 28 days' notice. Further, reading the Employment Act through section 7 of the sixth schedule of the Constitution with articles 41 and 47 and the Fair Administrative Action Act, the court held that such an employee prematurely released is entitled to be informed of reasons and accorded a hearing, neither of which occurred. The court also clarified that casual employment is still an employment relationship. The Claimant was awarded Ksh. 150,000.00 as compensation for unfair termination (two months' salary under section 49), Ksh. 75,000.00 in lieu of notice under sections 35 and 36, interest at court rates, subject to statutory deductions, plus costs.

Key legal issues

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01

Nature of the employment relationship

Holding

The parties had an employment relation of a temporary (casual/locum) nature, not an indefinite term contract

Reasoning

The court held that monthly payment does not denote permanence. The Claimant's application letter sought locum or permanent engagement but there was no record of indefinite hire, and her letter of 24th June 2021 acknowledged she was serving on locum basis, which is temporary and consistent with casual employment.

p. 4
02

Whether the employment was fairly terminated

Holding

The termination was unfair because the Claimant was released prematurely without notice, reasons or a hearing

Reasoning

As a casual paid monthly, she was entitled to 28 days' notice under section 35. Further, under articles 41 and 47 of the Constitution as read with the Fair Administrative Action Act and section 7 of the sixth schedule, employees released before the lapse of their anticipated temporary term must be informed of reasons and accorded a hearing. Neither was done.

p. 5

Legal principles established

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  • Casual nature of employment is not pegged exclusively on daily payment of wages
  • Casual employees paid at intervals exceeding one day gain section 35 notice protection
  • Casual employees serving beyond a day who are released prematurely are entitled to reasons and a hearing under articles 41 and 47
  • All forms of employment contract, including casual, result in an employment relation

Court orders

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  1. 1.Compensation for unfair termination equivalent to two months' salary, Ksh. 150,000.00
  2. 2.Payment in lieu of notice of Ksh. 75,000.00 under section 35 as read with section 36 of the Employment Act
  3. 3.Interest on the award at court rates from the date of the decision
  4. 4.The award is subject to applicable statutory deductions
  5. 5.The Claimant is awarded costs of the case

Authorities

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Legislation

  • Employment Actsections 2, 35, 36, 49
  • Constitution of Kenya 2010articles 41, 47 and section 7 of the sixth schedule
  • Fair Administrative Action Actnot specified
  • ELRC Procedure RulesRule 28(3)

Cases cited (4)

  • Josphat Njuguna vs High Rise Self Group
    [2014] eKLR
  • Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu & 4 others
    [2018] eKLR
  • Rashid Odhiambo Allogoh & 245 Others vs Haco Industries Limited
    [2015] eKLR
  • Kenya National Union of Nurses v Nairobi County Public Service Board & another
    [2022] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and articles 41 and 47 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ibrahim v Reliance Hospital Limited (Employment and Labour Relations Cause E816 of 2021) [2023] KEELRC 2539 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2539/eng@2023-10-19

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