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IndustrialDismissedCause No 2224 of 2012· [2014] KEIC 101 (KLR)

Francis Nthenge Mwovwa v Auto Spring Manufacturers Limited (Cause 2224 of 2012) [2014] KEIC 101 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
14 July 2014
NMNzioki Wa Makau
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan worker's claim for unfair termination and dues failed because he couldn't prove he was a permanent employee rather than a casual labourer.

What this practically means

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Executive summary

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The Claimant sued the Respondent in 2012 alleging he was employed from December 1994 as a machine attendant (later testifying as a grinder and welder) and was told to go home in August 2007. Through the Kenya Engineering Workers Union he reported a dispute to the Ministry of Labour, alleging a lockout after the employer introduced a system of three weeks' work followed by one week's rest. He sought a declaration that his termination was unlawful, one month's salary in lieu of notice, leave pay for the entire service period, service gratuity, twelve months' compensation, costs and interest. The Respondent denied continuous employment, asserting the Claimant was a casual general labourer engaged intermittently between 1998 and 2008 and not engaged after 2008 when the company ceased making motor vehicle bodies and casuals were laid off for lack of work. Its Human Resource Manager testified that casuals were paid daily and that leave and conversion to permanent status required at least three months' continuous work. The Claimant testified alone; the Respondent called one witness. The court held the Claimant failed to prove union membership, untaken leave, entitlement to notice or service, or a lockout, defining a lockout by reference to Black's Law Dictionary. Applying the definition of a casual employee, the court found casuals earn no leave, need no notice, and that the union's own memorandum negated continuous service. The suit was dismissed with costs to the Respondent on 14th July 2014.

Key legal issues

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01

Whether the cessation of engagement amounted to unfair termination or a lockout

Holding

Neither unfair termination nor lockout was proved; the evidence showed casual engagement that simply ceased

Reasoning

The court defined a lockout as an employer's withholding of work and closure of business because of a labour dispute, distinct from a strike. The Claimant produced only union correspondence and conciliation documents, no proof of termination or lockout. The Respondent's witness testified the Claimant was a casual not engaged after 2008 for lack of work. The claim therefore failed on the evidence.

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02

Whether a casual employee is entitled to leave, notice and service pay

Holding

No - a casual employee hired day to day earns no leave, requires no notice, and cannot claim service pay without continuous engagement for a year

Reasoning

The court applied the statutory definition of a casual employee as one paid at the end of each day and not engaged for longer than twenty-four hours at a time. Because hire is not guaranteed for the next day, leave does not accrue and no notice is needed. Continuous service is a precondition for service pay, which the union's own memorandum (three weeks work, one week rest) negated.

p. 3
03

Burden of proof in the claim

Holding

The Claimant bore and failed to discharge the burden of proving entitlement to the remedies sought on a balance of probabilities

Reasoning

Although counsel for the Claimant invoked Sections 10 and 74 of the Employment Act to shift the documentary burden to the employer, the court found the Claimant adduced no evidence of union membership, leave entitlement or termination, and no certificate under Section 73 of the Labour Relations Act issued. The claim was dismissed in consequence.

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Legal principles established

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  • A casual employee, engaged and paid at the end of each day, is not entitled to annual leave
  • A casual employee is not entitled to payment in lieu of notice
  • A claimant in employment disputes must prove entitlement to remedies on a balance of probabilities

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs of the suit to the Respondent

Authorities

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Legislation

  • Employment ActSections 10, 41, 45, 74
  • Labour Relations ActSection 73

Cases cited (1)

  • William Opetu v. Mukesh Patel
    Cause 909 of 2011
Jurisdiction invoked
Original jurisdiction of the Industrial Court over employment and labour relations disputes (Employment Act 2007 reliefs claimed)

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, "Francis Nthenge Mwovwa v Auto Spring Manufacturers Limited (Cause 2224 of 2012) [2014] KEIC 101 (KLR)", Case Analysis (2014). Cause No 2224 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/101/eng@2014-07-14

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