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ELRCPartially AllowedMemorandum of Appeal dated 5th October 2023

Chic Fashions Limited v Miwa (Appeal E094 of 2023) [2024] KEELRC 700 (KLR)

Employment and Labour Relations Court
14 March 2024
4,353 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that 'daily contract' labels can't dodge employment law protections, but an employee who abandons work loses most claims.

What this practically means

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Executive summary

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The Appellant employer appealed against the trial court's decision in favour of the Respondent, a former worker engaged from 2017 to 2020 on 'Specific Task Daily Contracts' with daily payment. The appeal raised three issues: whether the Respondent absconded duty rather than being terminated; whether the awards for underpayment and leave were justified; and whether the trial magistrate properly converted the Respondent's contract under section 37 of the Employment Act despite the parties' written daily contracts. The court, applying the principles in Selle v Associated Motor Boat Company, held that the daily contract label was deliberately intended to circumvent section 37 and that under section 92(3) less favourable contractual terms are void, so the trial court's conversion of the employment was justified. On termination, the court found the certified Safaricom records produced under section 106B of the Evidence Act proved the Appellant made reasonable efforts to contact the Respondent, who had absconded duty; absence without lawful cause being a valid ground for summary dismissal under section 44, the awards for one month's pay in lieu of notice and compensation for unfair termination were set aside. On underpayment, the court found the wages paid matched or exceeded the gazetted minimum wage for a machine operator under Gazette Notices 112 of 2017 and No. 2 of 2018, and set aside that award. However, the Appellant produced no leave records to rebut the claim, and the award for payment in lieu of leave was upheld. The appeal, being partially successful, was disposed of on those terms with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court failed to consider the uncontroverted evidence tendered by the appellant which showed that the alleged termination was false (issue of absconding duty)
  2. 2.Whether the trial magistrate erred in awarding the claim for underpayment and leave allowance
  3. 3.Whether the learned Magistrate erred in converting the respondent's contract pursuant to section 37(3) of the Employment Act despite the existence of a contract between the parties which stated otherwise

Key legal issues

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01

Whether the respondent's 'Specific Task Daily Contract' terms could stand against conversion under section 37 of the Employment Act

Holding

The conversion by the trial court was justified; the daily contract could not circumvent section 37 and was void under section 92(3) to the extent less favourable

Reasoning

The respondent worked continuously for approximately three years on daily pay. The appellant failed to demonstrate he was a piece-rate worker, merely relying on the contract label. The court held the arrangement was deliberately designed to circumvent section 37, and under section 92(3) any less favourable contractual term is void, with the statutory conditions deemed incorporated. The trial court therefore acted within section 37(4) in varying the terms.

p. 6
02

Whether the respondent was terminated or absconded duty

Holding

The respondent absconded duty; the certified Safaricom records under section 106B of the Evidence Act proved the appellant made reasonable efforts to contact him, justifying summary dismissal under section 44

Reasoning

The appellant produced a certified printout of communications from Safaricom and screenshots of messages asking the respondent to resume work. The respondent admitted the telephone number was his but denied receiving the messages, which the court found unbelievable. Absence from work without lawful cause is a valid ground for summary dismissal under section 44, so the awards for notice pay and unfair termination compensation could not stand.

p. 7
03

Whether the respondent was underpaid

Holding

No underpayment; the appellant's daily wage matched or exceeded the gazetted minimum wage for a machine operator under the applicable Gazette Notices

Reasoning

The appellant never clearly distinguished a mass production machinist from a machine operator, so the trial court's classification as machine operator was justified. However, comparing the wages paid (Kshs. 705 in 2017, later increased to Kshs. 739.05) with the gazetted minimum wage under Gazette Notice 112 of 2017 and Gazette Notice No. 2 of 2018, the appellant paid at or above the minimum wage. The award for underpayment was therefore set aside.

p. 8
04

Whether the award for leave pay should stand

Holding

Yes; the appellant failed to produce leave records and did not rebut the allegation that the respondent never went on leave

Reasoning

Under section 74 of the Employment Act the employer must keep employment records. The appellant produced no evidence that the respondent ever proceeded on leave during the three years of service, so the trial court's award for payment in lieu of leave was justified and was upheld.

p. 8

Legal principles established

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  • A casual employee who works continuously for the equivalent of one month or more, or whose work cannot be completed within three months, is deemed by section 37 of the Employment Act to be employed on monthly wages, and a contract providing less favourable conditions is void under section 92(3)
  • A worker engaged on daily pay for tasks completed within the day is a casual employee even if labelled a 'specific task daily worker'; such labels cannot be used to circumvent section 37 of the Employment Act
  • Absence from work without leave or other lawful cause is a valid ground for summary dismissal under section 44 of the Employment Act, and certified electronic records under section 106B of the Evidence Act may prove that an employer made reasonable efforts to contact the employee
  • Under section 74 of the Employment Act, failure by an employer to produce employment records such as leave records leads to the conclusion that the employee's allegation is most probably true

Court orders

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  1. 1.The award for underpayment is set aside, the appellant having not underpaid the respondent
  2. 2.The award for pay in lieu of notice is set aside, the respondent having absconded duty and being liable to summary dismissal
  3. 3.The award for compensation for unfair termination is set aside, the dismissal being justifiable on grounds of absconding duty
  4. 4.The award for payment in lieu of leave is upheld and the ground of appeal on leave fails
  5. 5.Each party to bear their own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Trial Court (Magistrates' Court)
Jurisdiction invoked
First appellate jurisdiction over the trial court's decision in an employment claim

Relief refused

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Setting aside of the award for payment in lieu of leave

The appellant never produced employment records to rebut the respondent's allegation that he never went on leave; the burden under section 74 of the Employment Act lay on the employer

p. 8

Allowing the appeal in its entirety and dismissing the suit in the lower court

The appeal succeeded only on grounds of underpayment, pay in lieu of notice and compensation; it failed on conversion of contract and leave

p. 8

Costs

Each party to bear their own costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the appellant to maintain that the respondent was not a casual worker yet continue with him on daily pay arrangement was deliberately intended to circumnavigate the provisions of section 37 of the Employment Act.
p. 5Conversion of casual employment under section 37
To this extent the trial court was justified in deeming the respondent’s employment as a casual contract for purposes of section 37 of the Act.
p. 6Validity of trial court's conversion of contract
Under section 44 of the Employment Act, absence from work without leave or other lawful cause from the place appointed for the performance of his work is a valid ground for summary dismissal.
p. 7Summary dismissal for absconding duty
The respondent having absconded duty was liable for summary dismissal hence no pay in lieu of notice. The award under this head is set aside.
p. 8Final orders - pay in lieu of notice
The appeal having been partially successful, each party to bear their own costs of the appeal.
p. 8Final orders - costs

Issues in the judgment

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minor

Judgment numbering skips paragraph 31 (paragraphs run from 30 to 32)

minor

minor

Memorandum of appeal described as containing 5 grounds but the court identifies grounds 2, 3 and 4 while the extract lists grounds lettered a-c

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, "Chic Fashions Limited v Miwa (Appeal E094 of 2023) [2024] KEELRC 700 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 5th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/700/eng@2024-03-14

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