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ELRCDismissedNot stated in the judgment text provided· [2018] KEELRC 1838 (KLR)

Eric Odhiambo Owade & 2 others v Professional Cleaning Care Limited [2018] KEELRC 1838 (KLR)

Employment and Labour Relations Court
8 June 2018
BOByram Ongaya
1,465 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that cleaners whose contracts ended when the client's cleaning subcontract expired were fairly terminated and not owed compensation, severance, or overtime pay.

What this practically means

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Executive summary

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Three cleaners employed by the respondent, a subcontractor providing cleaning services to East Africa Breweries Limited through Ecolab East Africa (Kenya) Ltd, claimed terminal dues after their employment ended on 31.08.2014 when the cleaning subcontract expired. Each sought pay in lieu of annual leave, 12 months' compensation for unfair termination, pay for public holidays worked, and overtime pay, with the 1st claimant also claiming unremitted NSSF dues. The respondent denied liability, contending termination followed the contractual tenure clause. The court found the contracts expressly provided that employment subsisted only as long as the customer's cleaning contract did, and that the one month's notice given was the agreed termination mechanism. Following Enforce Security Group v Mwelase Fikile, the court held that lapsing of the subcontract was a legitimate event giving rise to automatic termination, and the existence of a redundancy option could not negate the parties' agreement. Termination was therefore fair under sections 43 and 45 of the Employment Act; section 40 on redundancy did not apply. On remedies, the court held: no severance/service pay since there was no redundancy and the claimants were NSSF members (section 35(6)(d)); no annual leave pay as leave had been taken or paid in cash; and no overtime pay because the contract granted off days as compensation for extra hours, the court being unable to re-write the parties' contract per National Bank of Kenya v Pipeplastick Samkolit. All three suits were dismissed with each party bearing its own costs. Judgment delivered at Nairobi on 8 June 2018 by Byram Ongaya, Judge.

Key legal issues

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01

Whether termination upon expiry of the subcontract was unfair

Holding

The termination was not unfair; it was in accordance with the agreed termination clause upon attaching of the agreed precondition for end of tenure.

Reasoning

The contracts expressly provided that employment lasted as long as the cleaning services contract with the customer subsisted. The respondent gave the agreed one month's notice when the Ecolab subcontract expired on 31.08.2014. The reason was genuine under section 43 and the procedure agreed. Section 40 on redundancy did not apply; section 35(5) on termination by notice applied. The court declined to re-write the parties' intention, finding redundancy would be an oppressive characterisation of a tenure-based arrangement.

p. 2
02

Entitlement to severance/service pay, annual leave pay and overtime pay

Holding

None of these remedies were available: no redundancy, NSSF membership excluded service pay, leave was taken or paid, and off days compensated extra hours per the contract.

Reasoning

Having found no redundancy, section 40(g) severance fell away, and section 35(6)(d) excluded service pay for NSSF members. The claimant's own testimony established leave was paid or granted, tilting the balance of probability to the respondent. The contract's express clause granting off days for extra hours defeated the overtime claim, the court being bound by the contract's terms per the National Bank of Kenya v Pipeplastick Samkolit principle.

p. 2

Legal principles established

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  • Where a contract of employment provides that tenure lasts as long as the underlying subcontract for services subsists, lapsing of that subcontract is a legitimate event giving rise to automatic termination by agreement, and the employer's option to instead declare redundancy cannot negate the agreed terms.
  • A court of law cannot re-write a contract between the parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved.

Court orders

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  1. 1.Judgment entered for the respondent against the claimants for dismissal of the claimants' respective suits
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 40
  • Employment Actsection 40(g)
  • Employment Actsection 35(5)
  • Employment Actsection 35(6)(d)

Cases cited (2)

  • Enforce Security Group –Versus- Mwelase Fikile & 4 Others
    DA24/15
  • National Bank of Kenya Ltd –Versus- Pipeplastick Samkolit (K) Ltd and Another
    (2001) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (the judgment does not cite the specific constitutional provision)

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, "Eric Odhiambo Owade & 2 others v Professional Cleaning Care Limited [2018] KEELRC 1838 (KLR)", Case Analysis (2018). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1838/eng@2018-06-08

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