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ELRCDismissedStatement of Claim dated 10th July 2018 (Employment and Labour Relations Court)· [2023] KEELRC 3093 (KLR)

Owino v Platinum Outsourcing & Logistics (EA) Ltd (Cause 1181 of 2018) [2023] KEELRC 3093 (KLR)

Employment and Labour Relations Court
28 November 2023
NMNzioki wa Makau
3,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a piece-rate loader who joined an unprotected strike was not unfairly dismissed, and his claim for terminal dues failed.

What this practically means

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Executive summary

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The Claimant sued the Respondent, an outsourced labour and logistics service provider engaged as a sub-contractor supplying labour at the Kenya Breweries Limited plant in Ruaraka, claiming unlawful and unfair termination of his employment. He was engaged on 1st September 2016 as a Loader and Sorter and alleged summary dismissal on 21st April 2017 without notice or hearing, seeking declarations of breach and unfair termination, calculation of dues, remission of tax to KRA, costs and interest. The Respondent contended the Claimant was a piece-rate worker paid 0.65 cents per case of beer, that the dispute arose from the workers' rejection of a 3-shift plan and revised rates, that the Claimant downed tools and went on an unprotected strike, refused to resume work unlike 98 of his colleagues, and that after conciliation at the Nyayo House Labour Office he left on his own accord, cleared with the Respondent and was paid all final dues. The Court did not frame or analyse issues in a separate section but adopted the Respondent's position that the Claimant was a piece-rate worker whose earnings varied with output, that statutory deductions did not convert piece-rate engagement into a term contract, and that the prayer on tax remission was misconceived since a piece-rate worker earning varied sums was largely tax free and responsible for declaring his own earnings. The suit was dismissed with no order as to costs. Judgment was delivered at Nairobi on 28th November 2023 by Nzioki wa Makau, Judge.

Key legal issues

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01

Employment status of the Claimant

Holding

The Claimant was a piece-rate worker, not a casual or permanent employee; his pay was variable depending on work done and he could not claim entitlements beyond payment for tasks performed

Reasoning

The Respondent pleaded and proved a fixed rate of 0.65 cents per case of beer loaded or ofioaded. Pay slips indicated 'variable basic pay', earnings differed month to month, and the Labour Office conciliation found the workers had no claim. Reliance was placed on Krystalline Salt and Joash Ogara Mainga on the nature of piece-rate employment.

p. 6
02

Whether the Claimant was unfairly and unlawfully terminated without notice

Holding

The termination was not unlawful; the Claimant rejected revised rates, downed tools, went on an unprotected strike, refused to resume work and thereafter cleared with the Respondent and was paid his final dues

Reasoning

The dispute arose over a 3-shift proposal and revised piece rates. After consultation, workers were advised rates would not be adjusted; 98 workers resumed but the Claimant never did. A conciliation process at Nyayo House Labour Office concluded the Claimant engaged in an unprotected strike with no claims against the Respondent.

p. 2
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Entitlement to tax-related relief

Holding

The prayer for an order compelling remission of tax to KRA failed; the piece-rate Claimant had no salaried employment income for which the Respondent bore such an obligation

Reasoning

The Court found the prayer inarticulate. A piece-rate worker earning varied sums on shifts was largely tax free; any tax obligation would fall on the Claimant to declare and compute his own earnings.

p. 6

Legal principles established

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  • A piece-rate worker is engaged on the basis of the amount of work performed, not time expended, and monthly payment with statutory deductions does not of itself convert piece-rate employment into a term contract
  • Conversion of casual employment to a term contract under section 37 of the Employment Act requires a precondition that the employee started and continued working as a casual worker

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over disputes arising from employment contracts (Employment Act, 2007)

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, "Owino v Platinum Outsourcing & Logistics (EA) Ltd (Cause 1181 of 2018) [2023] KEELRC 3093 (KLR)", Case Analysis (2023). Statement of Claim dated 10th July 2018 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3093/eng@2023-11-28

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