Victor Ali Anzigare v World Bicycle Relief Kenya [2014] KEELRC 30 (KLR)
The bottom line
#Kenya's Employment Court ruled that working past a contract's expiry continues employment, so ending it verbally without a hearing was unfair and compensable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether there was an employment relationship between the Claimant and the Respondent after 30th June 2011
- 2.whether the Claimant's employment was terminated unfairly
- 3.whether the Claimant is entitled to the reliefs sought
Key legal issues
#Existence of employment relationship after expiry of fixed term contract
The claimant remained in employment until 7th October 2011, when he was verbally terminated, notwithstanding that his fixed term contract expired on 30th June 2011.
The contract covered 1st January to 30th June 2011, but the respondent's advocates' letter confirmed the claimant was retained after expiry until September 2011. The respondent's own letters dated 7th October 2011 under the reference 'Expiry of Contract' offering notice pay and leave pay confirmed employment continued to that date.
Fairness of the termination
The termination was unfair: it was verbal and the respondent failed to observe section 41 of the Employment Act; the reason of expiry of the fixed term contract could not stand since the claimant worked more than three months past expiry.
Section 41 requires notification and hearing before termination on grounds of misconduct, poor performance or similar reasons. The respondent terminated verbally without any such process. Further, the pleaded reason (expiry of contract) was contradicted by the continued employment for over three months after expiry, so the stated justification could not hold.
Remedies for unfair termination
The claimant was awarded salary for September 2011, one month's salary in lieu of notice, leave pay of Kshs.15,238, service pay of Kshs.10,000 (being not an NSSF member), and compensation of two months' salary, plus a Certificate of Service, costs and interest.
Having worked the whole of September the claimant was entitled to that salary; instant termination without notice entitled him to notice pay; non-membership of NSSF entitled him to service pay under section 35(5); leave had been tabulated at Kshs.15,238 by the respondent; and for about 13 months of service two months' salary compensation was reasonable.
Legal principles established
#- An employee who continues working after expiry of a fixed term contract is in employment notwithstanding expiry of the contract, and termination of such continued employment must comply with section 41 of the Employment Act.
- A verbal termination that does not observe section 41 of the Employment Act is unfair.
- An employee not a member of NSSF or any other retirement benefits scheme is entitled to service pay under section 35(5) of the Employment Act.
Court orders
#- 1.Salary for September 2011 - Kshs.20,000
- 2.Pay of 1 month's salary in lieu of notice - Kshs.20,000
- 3.Pay in lieu of Annual leave - Kshs.15,238
- 4.Service Pay at 15 days salary - Kshs.10,000
- 5.Compensation of 2 months' salary - Kshs.40,000
- 6.Respondent to issue the Claimant a Certificate of Service
- 7.Costs of the suit to the Claimant
- 8.Interest on decretal sum at court rates from date of Judgment to payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, heard by the Industrial Court
Relief refused
#Terminal dues as enumerated under Clause 2(m) in the sum of Kshs.310,000
The court awarded only the specific dues it found proven, totalling Kshs.105,238, not the claimed Kshs.310,000
Interest from 5th September 2011 until payment in full
Interest was awarded only from the date of Judgment, not from September 5, 2011 as sought
Declaration that the termination was null and void
The court found the termination unfair and awarded compensation instead of reinstating or nullifying the termination
Costs
I award the Claimant costs of this suit and interest on decretal sum at court rates from date of Judgment to date of payment in full.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find that the claimant was in employment of the Respondent upto 7 th October 2011 when he was verbally terminated from employment by the Respondent.
the termination of employment of the Claimant was unfair as it was verbal and the Respondent did not observe the provisions of Section 41 of the Employment Act.
He is therefore entitled to service pay as provided in section 35(5) of the Employment Act.
6. Certificate of Service 7. Costs and interest Orders accordingly.
Issues in the judgment
#The claimant testified he was employed on 16th April 2010 and worked about 13 months on short term contracts, while RW1 testified the claimant worked from 1st February 2011 and was terminated on 30th June 2011; the court found employment ran to 7th October 2011.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Victor Ali Anzigare v World Bicycle Relief Kenya [2014] KEELRC 30 (KLR)", Case Analysis (2014). Memorandum of Claim dated 12th September 2012, filed 13th September 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/30/eng@2014-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.