[2021] KEELRC 1029 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NO 944 OF 2016

PHILIP OMUKULE........................................................................CLAIMANT

VERSUS

TRAPOZ CONTRACTORS LTD.............................................RESPONDENT

JUDGMENT

1. The Claimant in this cause has sued the Respondent allegedly for unlawful termination of a contract of service between the parties. While the Claimant asserts that he was unlawfully terminated when the Respondent’s management asked him not to report to work owing to reduction of work, the Respondent has asserted, rather strongly, that it never terminated the Claimant from employment as there was not a contract of service between the two parties in the first instance.

2. The Claimant filed a statement of claim dated 26th May 2016. Through it, he asserts that he was employed by the Respondent on 10th February 2012 albeit through an oral contract. He further asserts that he remained in such employment until 1st March 2016 when the Respondent’s officers terminated him, again verbally.

3. During his term of service, the Claimant states that he was paid a daily wage of Ksh. 800/=. In his view, this amount was below the wage rate under the prevailing minimum Wage Order. He therefore prays for payment of the deficit.

4. The Claimant also raises several other claims which he asserts were not honoured during the course of his employment with the Respondent. These include house allowance, leave pay, overtime pay, NSSF remittances, tools allowance and commuter allowance. Finally, the Claimant asks that he be compensated by an award of damages commensurate to 12 months of his gross salary.

5. The Respondent filed a statement of response. In it, the Respondent denies that the Claimant was its employee. It asserts that the only relation it had with the Claimant was that of an independent contractor. Under this arrangement, the Claimant would only be called upon to undertake some works as and when they arose. To fortify its contention, the Respondent points to the electronic money payment records filed by the Claimant. It asserts that just as the said records demonstrate, the Claimant would only be paid sporadically in recognition of the truism that he only worked whenever there was an assignment for him. As a result, the Respondent prays that the Claimant’s claim against it be dismissed with costs.

6. Although the Claimant filed a list of issues at the pretrial stage, he framed a fresh list at the stage of filing his final written submissions. Looking at the two sets of issues, there is a sense in which it appears that there is some variance in the way they are formulated.

7. The Respondent did not file its list of issues at the pretrial stage. Nevertheless, it did frame them through its written submissions.

8. At the trial, both parties gave evidence. They both adopted their respective witness statements and documents as their evidence in chief and exhibits. The witnesses were then cross examined on their testimonies.

9. At the close of the case, the parties elected to file written submission. The submissions largely reiterate their respective viewpoints on the case.

10. From the pleadings and submissions the following are the critical issues for determination in the cause:-

a) Whether there existed a contract of employment between the Claimant and the Respondent.

b) If the answer to issue one above is in the affirmative, whether the contract of service was unlawfully terminated by the Respondent.

c) If the answer to two above is in the affirmative what remedies is the Claimant entitled to?

11. As is rightly observed by the parties to the dispute, the question whether the relationship between the parties was one of a contract of service or a contract for services is central to the case. Depending on how it is determined, the other issues may or may not be addressed.

12. With respect to the first issue, it is perhaps important to point out that the case raises two fundamental and troublesome matters that have perennially occupied the minds of employment law practitioners and adjudicators of employment disputes. First, is the question of how to draw a line between contracts of service on the one hand and contracts for services on the other. Second, is whether the so called reverse burden of proof may be resorted to in resolving disputes arising from contracts for supply of labour.

13. And here, I use the term ‘’ contracts for supply of labour’’ deliberately because labour relations do not just involve employer-employee relations. They also cover exchange of labour under independent contracts.

14. While the protections offered by employment law cover employer-employee relations, they do not apply to independent contract situations. As well the provisions of the Employment Act, as a general rule, do not have application to disputes arising from independent contracts.

15. Due to their peculiar nature, some disputes in employment relations are usually resolvable by reference to the concept of reverse burden of proof. Understood in the context of section 112 of the Evidence Act, evidence to resolve some of these disputes is usually in the exclusive control of the employer. As a consequence, the law will require the employer to provide such evidence to prove or disprove a fact in issue even though the claim is in strict sense, originated by the employee. This is by applying the concept of reverse burden of proof.

16. As well the perceived historical imbalance of power between the social partners to an employment contract has continued to create the impression of the employee as the weaker party in the relation. As a result, it is sometimes thought that this weaker party requires heightened protection from possible abuse by the employer.

17. In a bid to guarantee this protection, the law occasionally requires the employer to justify some of his/her decisions in relation to the contract of employment. Absent this justification, the employer risks the possible result of an arbiter presuming in favour of the validity of the employee’s preliminary assertions in relation to some disputes connected to the contract.

18. Examples of these instances are to be seen in disputes relating to: assertions of discrimination under section 5 of the Employment Act; proof of the terms of a written employment contract under section 10 of the Employment Act; and unlawful terminations as governed by sections 43, 45 and 47 of the Employment Act.

19. It is to be noted that while some provisions on employment law embrace the concept of reverse burden of proof, this concept does not have application to disputes arising from independent contract scenarios save in so far as the issues under consideration fall within the purview of section 112 of the Evidence Act.

20. In this cause it is not in dispute that the Claimant provided labour to the Respondent in return for monetary reward. However, what is not agreed is the legal relationship under which this exchange happened.

21. If it is demonstrated that the exchange happened under a contract of service, then the parties may resort to employment law to resolve any disputes arising in the course of execution of their respective roles under the relationship. However, if the services were rendered under an independent contract relation, the parties can only resort to the general law of contract to resolve any disputes arising therefrom.

22. On his part, the Claimant contends that he provided labour under an employer-employee relation. To support his assertion, the Claimant states that he was employed by the Respondent on 10th February 2012. That he worked for the Respondent continuously and was paid a daily wage of Ksh 800/=. That this amount would be paid either through electronic money transfers or in cash at the close of every calendar week. He produced some Mpesa statements in purported proof of this fact.

23. The Respondent disputed this fact. It was the Respondent’s evidence that it only engaged the Claimant on a need basis and paid him off after every assignment. That indeed the Mpesa statements demonstrate this fact as they bear variance in the payments made to the Claimant in terms of time and quantum.

24. In the Respondent’s view, the Claimant worked as an independent contractor. Therefore, he was not entitled to the protections and benefits guaranteed to employees under the various employment law statutes such as payment of house allowance, leave, insulation against arbitrary termination among others.

25. To establish the fact of employment, the Claimant suggested that the duty was on the Respondent, if it denied employing the Claimant, to provide the employment records it had in its custody in order to show that the Claimant was not in the list of its employees. This suggestion flies in the face of the provisions of sections 107, 108 and 109 of the Evidence Act which place both the legal and evidential burden of proof of a disputed fact in civil proceedings on the party making a positive assertion of such fact.

26. When an individual claims that he/she is an employee of another and the other denies this assertion, the burden is on the party asserting the fact of employment to establish it. This scenario is quite distinct from a situation where an employer admits the fact of employment but disputes the contents of some of the terms of such contract.

27. In my view, in the first scenario the individual disputing the fact of employment cannot reasonably be expected to be in exclusive control of evidentiary facts in relation to the disputed fact as the contract is said not to exist in the first place. In contrast, in the second scenario, it is reasonable to conclude that the employer is in a position to resolve the dispute by providing details of such contract as the instrument is, in the ordinary course of things, most likely to be under his control in terms of section 112 of the Evidence Act. This is so because section 9 of the Employment Act places on the employer the duty to have such contracts, where they are for a term above three months, reduced into writing. Consequently, while it is reasonable to apply the reverse burden of proof in the second scenario, it would be undesirable to apply the same logic to the first scenario.

28. As a result, the court rejects the Claimant’s insinuation that the concept of reverse burden of proof applies in the context of this case with the consequence that the Respondent is required to disprove the Claimant’s assertion that there was a contract of employment between them. The legal and evidential burden of proof remains upon the Claimant to establish the fact of employment on a balance of preponderances.

29. The other question that is closely related to the foregoing is whether the court is, in this matter, entitled to presume that the Respondent did not produce its employment records for scrutiny by the court because they were most likely adverse to its case. This became implicit when the Claimant suggested to the Respondent’s witness in cross examination that the Respondent did not produce its employment records for scrutiny by the court because they were unfavourable to the Respondent.

30. It is not disputed that the presumption of adversity of evidence has some application in the law of evidence. However, it finds application more in criminal trials than it does in civil suits. And the reason for this is implicit in the constitutional duty that behooves the prosecution in criminal cases to ensure a fair trial for an accused person by furnishing him/her with all evidence in its possession on the offense he/she faces irrespective of whether such evidence is adverse to the prosecution’s case (see Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR).

31. In civil suits the general guide on allocation of the legal burden of proof is set out in section 108 of the Evidence Act. This burden lies with that person whose case would fail if no evidence at all were given on either side. Stated differently, liability in a civil claim will, as a general rule, not attach against a party merely by reason of his silence in relation to a disputed fact if the party making a positive assertion of the fact has not furnished the court with evidence in support of his assertion. And it does not matter that the party electing to remain silent has some evidence that is relevant to the cause so long as it has not been demonstrated that such evidence is in his exclusive control within the meaning of section 112 of the Evidence Act. Accordingly, I decline to find that because the Respondent failed to produce its employment records for scrutiny, such records must be adverse to the Respondent’s case in the sense that they may be containing evidence that suggests that the Claimant was an employee of the Respondent.

32. Having made the above observations, it must then be clear in this matter that the duty to prove employment lay squarely with the Claimant. This is indeed consistent with previous pronouncements by this court on this question (see the pronouncement by Makau J inMartin Juma Kundu v Kemu Salt Packers Production Limited [2016] eKLR). The question which then must be answered is whether the Claimant provided evidence on this issue on a balance of probabilities to warrant a finding in his favour.

33. To prove employment the Claimant stated in his testimony that he used to work continuously for the Respondent. However, in cross examination, he acknowledged that the nature of the Respondent’s work meant that there would be occasions when there would be no assignments to be undertaken by him. This, he would later seek to change by asserting that construction works always require woodworks at every stage. Therefore, he used to work throughout.

34. I should say that the Claimant was very ambivalent on this issue. In my view, in the face of the express denial by the Respondent of the fact of employment, it was not enough for the Claimant to merely assert without more that he used to work continuously for the Respondent. Some other independent evidence on the issue, say from a former co-worker, would in my view have been helpful. While corroboration of the Claimant’s testimony in this respect is not required as a matter of law, it was necessary particularly in view of the flip-flop by the Claimant on the matter as alluded to above.

35. At this point I should point out that in their submissions, the Claimants lawyers refer to the fact of the Claimant signing a work attendance register as he reported on duty every morning as evidence of his having been on duty continuously. Unfortunately, I did not hear the Claimant give any such evidence while he was in the dock. And neither does this kind of averment appear in his written statement.

36. It will be undesirable for parties to try to introduce evidence unconventionally through submissions as appears to be the case on this issue. This denies the opponent the opportunity to test the veracity of such evidence. I would say no more on this.

37. On the issue of whether he earned a regular salary, although the Claimant produced his Mpesa records to demonstrate that he was salaried, the records cover only a few and isolated months in the years 2015 and 2016. Further, the payments vary so much across the months that they provide no consistent record of a constant amount paid to the Claimant as salary at regular intervals. In my respectful view therefore, these records do not support the Claimant’s contention that he was being paid a daily wage of Ksh. 800/= which would be paid regularly at the close of every week.

38. Even though the Claimant asserts that some payments would be made in cash, he did not indicate whether he used to sign any payment records against such cash payments and if he did, it is not clear why he did not issue a notice to the Respondent to produce such records. On this point, I share the view expressed by Ndolo J in Casmir Nyankuru Nyaberi v Mwakikar Agencies Limited [2016] eKLR, that where an employee believes that the employer has in its possession some documents that would support the case of the employee, that employee is obligated to serve on the employer a notice to produce such documents.

39. The Respondent has stated that the few payments made to the Claimant were for assignments completed under independent contracts after every assignment. And this, the Respondent stated, explains why there was no consistency on the payments to the Claimant in terms of their quantum and time of payment.

40. Several tests including the degree of control test, the integration test and the mutuality of obligation test apply to differentiate contracts of service from contracts for services. It is for the party asserting that he/she was an employee to provide evidence to show that his/her labour supply relation met the parameters set out in any one or more of these tests to qualify as an employee.

41. The Claimant provided no cogent evidence to establish the fact of employment in terms of the foregoing tests. On the contrary, there was a claim by him for tools allowance suggesting that the Respondent was to compensate the Claimant for use of his tools to execute the Respondent’s work. This is typical of an independent contract where the provider of labour ordinarily uses his own tools and labour force among others to serve the client.

42. Determination:

In the end the court is not persuaded that the Claimant has demonstrated on a balance of probabilities that he was an employee of the Respondent. At best, the court is convinced that what the parties were working under is an independent contract. I therefore dismiss the Claimant’s claim with costs to the Respondent.

43. The claim having been dismissed, the court will not delve into the other two issues that were for determination.

DATED, SIGNED AND DELIVERED ON THE 10TH DAY OF SEPTEMBER 2021

B O M MANANI

JUDGE

In the presence of:

............................................for the Claimant

............................................for the Respondent

ORDER

In view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th April 2020, this judgment has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.

B O M MANANI

JUDGE