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ELRCPartially AllowedCause No. 86 of 2002· [2006] KEELRC 3 (KLR)

KENYA BUILDING, CONSTRUCTION, TIMBER, FURNITURE & ALLIED INDUSTRIES EMPLOYEES’ UNION v D. MANJI CONSTRUCTION LTD. (Cause 86 of 2002) [2006] KEELRC 3 (KLR)

Industrial Court of Kenya
10 August 2006
1,471 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled a carpenter paid weekly or monthly for years was a permanent employee, awarding him terminal benefits despite his employer calling him casual.

What this practically means

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Executive summary

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The Industrial Court of Kenya at Nairobi, composed of Charles P. Chemmuttut, Judge, with Members J.M. Kilonzo and A.K. Kerich, determined a trade dispute reported under the Trade Disputes Act, Cap. 234, concerning the wrongful termination of James Karanja, a carpenter employed by D. Manji Construction Ltd from 8th January 1986 until 13th February 1993. The Union alleged the grievant was served with one month's termination notice after requesting annual leave, allegedly because he might incite other employees to strike. A Ministerial investigation recommended payment of one month's salary in lieu of notice, outstanding leave, statutory benefits and two months' compensation; the Union accepted but the Company rejected the recommendation. The Company contended the grievant was a casual worker engaged on and off on fixed contracts, given one month's notice under the Employment Act and the Regulation of Wages Order, and paid all dues. The Court applied the statutory definition of a casual employee in Section 2 of the Employment Act and, finding the grievant paid weekly or monthly over a cumulative period of one to two and a half years, held he was a permanent employee entitled to terminal benefits. However, it declined the claims for outstanding annual leave, tools allowance and public holidays as stale and belated. The Court awarded Kshs. 12,684/=, comprising notice pay, service pay, leave travelling allowance for 1993 and two months' salary as compensation. Both members concurred; the award was dated and delivered at Nairobi on 10th August 2006. No costs order was made.

Key legal issues

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01

Status of the grievant - casual or permanent employee

Holding

The grievant was a permanent employee, not a casual worker, notwithstanding the Company's assertion of on-and-off engagement, because his payment was on weekly or monthly basis and he worked cumulatively for 1 to 2.5 years.

Reasoning

The Court applied the statutory definition of a casual employee under Section 2 of the Employment Act, Cap. 226, which limits casual engagement to payment at the end of each day and engagement not exceeding twenty-four hours at a time. The admitted facts - cumulative service of one to two and a half years and weekly or monthly payment - were inconsistent with that definition, so the grievant qualified as a permanent employee entitled to terminal benefits.

p. 3
02

Entitlement to terminal dues upon termination

Holding

The grievant was entitled to balance of one month's notice, service pay, leave travelling allowance for 1993, and two months' salary as compensation, totalling Kshs. 12,684/=, but not to outstanding annual leave, tools allowance or public holidays pay, which were stale and belated.

Reasoning

The Court considered the Union's demand as a whole and the Minister's recommendation. It accepted the Minister's core recommendation on notice, service pay and compensation but declined the claims for accumulated annual leave, tools and public holidays on the ground that they were stale and belated. It thus partially allowed the demand, awarding Kshs. 12,684/= instead of the Kshs. 47,921/= claimed.

p. 3

Legal principles established

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  • An employee whose mode of payment is weekly or monthly, and who has worked cumulatively for years, is not a casual employee within the meaning of Section 2 of the Employment Act and is entitled to terminal benefits.

Court orders

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  1. 1.The grievant be paid Kshs. 12,684/= made up of balance of one month's notice (Kshs. 2,158/=), service pay for 7 years (Kshs. 5,810/=), leave travelling allowance for 1993 (Kshs. 400/=) and two months' salary as compensation (Kshs. 4,316/=)
Jurisdiction invoked
Trade Disputes Act, Cap. 234, Section 14(7) and (9)(e) and (f) - Notification of Dispute with statutory certificates from the Labour Commissioner and the Minister for Labour

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, "KENYA BUILDING, CONSTRUCTION, TIMBER, FURNITURE & ALLIED INDUSTRIES EMPLOYEES’ UNION v D. MANJI CONSTRUCTION LTD. (Cause 86 of 2002) [2006] KEELRC 3 (KLR)", Case Analysis (2006). Cause No. 86 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2006/3/eng@2006-08-10

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