Muyaka v SGA Security (Employment and Labour Relations Appeal E019 of 2022) [2024] KEELRC 2837 (KLR)

The Respondent maintained the Appellant was engaged on temporary assignments of not longer than 24 hours paid at the end of each day. Section 2 defines a casual employee as one paid at the end of each day and not engaged for longer than 24 hours, while section 37(1) deems the contract of a casual employee working the equivalent of a month or more to be one with monthly wages. Six years of continuous service triggered automatic conversion.

Relying on the 'range of reasonable responses' test from Reuben Ikatwa, the court assessed the employer's conduct. The Appellant's handwritten statement admitted allowing two strangers to take the battery. The CCTV footage was not produced in court, so the court could not verify camera tampering, but negligence was established. However, the trial magistrate's finding that due process was not followed stood, and the Appellant was innocent of any charge other than negligence.

The suspension letter required the Appellant to report to work daily and did not state suspension was without pay, and the Respondent did not tender terms of service providing for unpaid suspension. There was no termination letter fixing the termination date or reasons. The court therefore awarded salary for the full 19 days worked in August 2019 (Kshs. 12,600).

Section 28 entitles an employee who has worked two continuous months to annual leave. The Appellant testified he never took leave; the Respondent's witness claimed the Appellant had 4 days off monthly but tendered no proof the leave was utilised, and those were rest days after six working days. Given his industry, the applicable rate was 24 days per year under the Protective Security Services Order; he was in fact entitled to 144 days but was awarded as pleaded.

The court agreed with the trial court that this was a claim for termination of employment, not a declaration of redundancy within the meaning of section 40 of the Employment Act. The prayer for severance pay at 15 days for every year worked therefore failed.

The trial magistrate found due process was not followed but made no compensation award. The court considered section 49(4) factors, including the absence of a termination letter, the 6 years of service, the conditions of work and the reason for termination. The Appellant erred only in not verifying his colleague's word; he was not guilty of the charges levelled against him. Four months' salary was awarded.