Chic Fashions Limited v Miwa (Appeal E094 of 2023) [2024] KEELRC 700 (KLR)
The bottom line
#Kenya's Employment Court ruled that 'daily contract' labels can't dodge employment law protections, but an employee who abandons work loses most claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent's 'Specific Task Daily Contract' terms could stand against conversion under section 37 of the Employment Act
The conversion by the trial court was justified; the daily contract could not circumvent section 37 and was void under section 92(3) to the extent less favourable
The respondent worked continuously for approximately three years on daily pay. The appellant failed to demonstrate he was a piece-rate worker, merely relying on the contract label. The court held the arrangement was deliberately designed to circumvent section 37, and under section 92(3) any less favourable contractual term is void, with the statutory conditions deemed incorporated. The trial court therefore acted within section 37(4) in varying the terms.
Whether the respondent was terminated or absconded duty
The respondent absconded duty; the certified Safaricom records under section 106B of the Evidence Act proved the appellant made reasonable efforts to contact him, justifying summary dismissal under section 44
The appellant produced a certified printout of communications from Safaricom and screenshots of messages asking the respondent to resume work. The respondent admitted the telephone number was his but denied receiving the messages, which the court found unbelievable. Absence from work without lawful cause is a valid ground for summary dismissal under section 44, so the awards for notice pay and unfair termination compensation could not stand.
Whether the respondent was underpaid
No underpayment; the appellant's daily wage matched or exceeded the gazetted minimum wage for a machine operator under the applicable Gazette Notices
The appellant never clearly distinguished a mass production machinist from a machine operator, so the trial court's classification as machine operator was justified. However, comparing the wages paid (Kshs. 705 in 2017, later increased to Kshs. 739.05) with the gazetted minimum wage under Gazette Notice 112 of 2017 and Gazette Notice No. 2 of 2018, the appellant paid at or above the minimum wage. The award for underpayment was therefore set aside.
Whether the award for leave pay should stand
Yes; the appellant failed to produce leave records and did not rebut the allegation that the respondent never went on leave
Under section 74 of the Employment Act the employer must keep employment records. The appellant produced no evidence that the respondent ever proceeded on leave during the three years of service, so the trial court's award for payment in lieu of leave was justified and was upheld.
Legal principles established
#- A casual employee who works continuously for the equivalent of one month or more, or whose work cannot be completed within three months, is deemed by section 37 of the Employment Act to be employed on monthly wages, and a contract providing less favourable conditions is void under section 92(3)
- A worker engaged on daily pay for tasks completed within the day is a casual employee even if labelled a 'specific task daily worker'; such labels cannot be used to circumvent section 37 of the Employment Act
- Absence from work without leave or other lawful cause is a valid ground for summary dismissal under section 44 of the Employment Act, and certified electronic records under section 106B of the Evidence Act may prove that an employer made reasonable efforts to contact the employee
- Under section 74 of the Employment Act, failure by an employer to produce employment records such as leave records leads to the conclusion that the employee's allegation is most probably true
Court orders
#- 1.The award for underpayment is set aside, the appellant having not underpaid the respondent
- 2.The award for pay in lieu of notice is set aside, the respondent having absconded duty and being liable to summary dismissal
- 3.The award for compensation for unfair termination is set aside, the dismissal being justifiable on grounds of absconding duty
- 4.The award for payment in lieu of leave is upheld and the ground of appeal on leave fails
- 5.Each party to bear their own costs of the appeal
- On appeal from
- Trial Court (Magistrates' Court)
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's decision in an employment claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chic Fashions Limited v Miwa (Appeal E094 of 2023) [2024] KEELRC 700 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 5th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/700/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.