Gold Crown Beverages (K) Limited v Mane (Civil Appeal E077 of 2023) [2024] KEELRC 1362 (KLR)
The bottom line
#A 'casual' worker with monthly NSSF deductions was legally an employee, but his compensation was cut from 12 months' pay to two.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
The respondent, though engaged as a casual, was an employee protected under Sections 2 and 37 of the Employment Act, as shown by monthly NSSF remittances.
An NSSF statement covering April 2019 to May 2021 showed monthly statutory deductions by the appellant, which occur only within an employment relationship. Although attendance logs showed intermittent days worked, the respondent's evidence that he worked six days a week and earned Kshs.18,360 monthly was not materially challenged. Continued engagement for work not ending within a day triggered Section 37 conversion to a monthly contract.
Unfair termination
The termination was unfair; the appellant failed to prove reasons for termination as required by Sections 43 and 45 of the Act.
Having found an employment relationship, the respondent was entitled to notice and reasons. The appellant asserted that the respondent left on account of ill health or absconded, but its own witness admitted the respondent did not abscond. The onus lay on the appellant to prove absence from work, which it failed to discharge with any attendance register or muster roll evidence.
Quantum of compensation
The 12 months' compensation awarded by the magistrate was excessive and reduced to two months' compensation (Ksh.36,720).
Compensation is discretionary but must rest on sound judicial principles. The respondent served under two years, was paid his due wages, and the appellant paid statutory dues which were not contested. In those circumstances a full 12 months' award was not justified and two months' pay on the last wage was appropriate.
Leave pay
The award of unpaid leave pay of Ksh.25,704 was justified.
Annual leave is a right secured under Section 28 of the Employment Act, and the respondent, enjoying the protections of his employment following Section 37 conversion, was entitled to unpaid leave for the two years of service.
Legal principles established
#- A casual employee whose employment continues for work not likely to end within a day becomes protected under Section 37 of the Employment Act, with conversion to a monthly term contract.
- The employer bears the burden of proving the reasons for termination under Section 43 of the Employment Act.
- In employment claims, costs do not automatically follow the cause; the court must justify the award under Section 12(4) of the ELRC Act.
Court orders
#- 1.A declaration that the respondent was an employee of the appellant and his employment was terminated unfairly
- 2.Compensation of Ksh.36,720
- 3.Notice pay of Ksh.18,360
- 4.Leave pay of Ksh.25,704
- 5.Each party is to bear its costs for the lower court and this appeal
- On appeal from
- ELRC (Magistrates' Court), Mombasa
- Mombasa CMELR Cause No. 404 of 2021
- Jurisdiction invoked
- First appeal to the ELRC against the judgment in Mombasa CMELR Cause No. 404 of 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gold Crown Beverages (K) Limited v Mane (Civil Appeal E077 of 2023) [2024] KEELRC 1362 (KLR)", Case Analysis (2024). Not stated in judgment (ELRC Appeal from Mombasa CMELRC No. E404 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1362/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.