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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 2732 (KLR)

Njiru v East African Cable Limited (Employment and Labour Relations Cause 272 of 2018) [2023] KEELRC 2732 (KLR)

Employment and Labour Relations Court
2 November 2023
1,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a security supervisor Ksh. 737,490 in overtime, ruling employers cannot escape overtime pay through contract clauses or supervisors' titles.

What this practically means

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Executive summary

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The Claimant, employed as a security supervisor from April 2012 to June 2017, sued for overtime pay, contending that although his letter of appointment provided for 8.00 AM to 5.00 PM working hours, he was required to work 6.00 PM to 6.00 AM daily (twelve hours) without additional remuneration. The Respondent admitted the night hours but argued they fell within the contract, which reserved its right to require longer hours, and further that the Claimant, as a supervisor, was part of management and thus barred from overtime. The court held that the contractual reservation did not exclude remuneration for extra hours; under Section 27(1) of the Employment Act and Regulations 5 and 6 of the Regulations of Wages (General) Order, 1982, night-shift employees may work a maximum of ten hours per day, and hours beyond that attract pay at one and a half times the hourly rate. The Respondent's admission in testimony that the Claimant worked twelve-hour shifts removed the need for further proof. The claim that supervisors are management failed for want of evidence. The Respondent's reliance on Ngunda v Ready Consultancy Limited was rejected, that case being distinguishable because the employer there had not admitted overtime. The court also held that a discharge voucher did not release the overtime claim, since the Claimant had noted his reservation on its face, a fact confirmed by the Respondent's witness. The Claimant was awarded overtime for two extra hours per day over 1,612 working days (3,224 hours) at Ksh. 228.75 per hour, totalling Ksh. 737,490.00, with interest at court rates from the date of judgment and costs of the case. The suit thus partially succeeded, the overtime computation being limited to two hours per day rather than the full twelve-hour shift.

Key legal issues

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01

Entitlement to overtime pay despite contractual variation of work hours

Holding

The Claimant was entitled to overtime for hours worked beyond the statutory maximum of ten hours per day for night-shift employees, notwithstanding the contractual reservation of the right to require longer hours

Reasoning

The contract fixed hours at 8.00 AM to 5.00 PM and reserved the right to require longer hours, but said nothing about unpaid extra work. Section 27(1) of the Employment Act and Regulation 5 of the Regulations of Wages (General) Order, 1982 cap night-shift work at ten hours per day; hours beyond that are overtime payable at one and a half times the hourly rate. The Respondent's admission that the Claimant worked 6.00 PM to 6.00 AM daily established the extra two hours per day.

p. 2
02

Whether supervisory status disqualifies an employee from overtime

Holding

No, absent evidence that supervisors fall within management or a rule/CBA excluding them from overtime

Reasoning

The Respondent asserted the Claimant, as a security supervisor, was part of management and thus barred from overtime, but tendered no evidence that supervisory-level employees fall in management, nor any agreement, rule or Collective Bargaining Agreement clause disentitling the Claimant to overtime pay.

p. 2
03

Whether the discharge voucher released the Respondent from the overtime claim

Holding

It did not, because the Claimant noted his reservation on the face of the voucher

Reasoning

Although the Respondent produced a payment voucher releasing it from further claims, the Claimant testified he noted his outstanding overtime entitlement on it, and the Respondent's witness confirmed this in cross-examination. The court therefore found no release of the overtime claim.

p. 3
04

Distinguishability of Ngunda v Ready Consultancy Limited

Holding

Distinguished because the employer there did not admit overtime and there was no evidence of how extra hours accrued

Reasoning

Unlike the present case, the employer in Ngunda did not admit that the employee worked overtime, and in this case there was adequate evidence (the Claimant's testimony plus the defense witness's admission) demonstrating when the extra hours were incurred.

p. 2

Legal principles established

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  • A contractual right to require longer hours does not disentitle an employee to remuneration for extra hours worked
  • Work outside statutory maximum hours is overtime payable at one and a half times hourly pay
  • An admission in testimony removes the need for further proof of the admitted fact

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of Ksh. 737,490.00
  2. 2.Interest on the aforesaid sum at court rates from the date of the decision
  3. 3.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment ActSection 27(1)
  • Regulations of Wages (General) OrderRegulations 5 and 6
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (1)

  • Ngunda v Ready Consultancy Limited
    (Civil Appeal 129 of 2019) [2022] KECA 577 (KLR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njiru v East African Cable Limited (Employment and Labour Relations Cause 272 of 2018) [2023] KEELRC 2732 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2732/eng@2023-11-02

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