[2019] KEELRC 2396 (KLR)
The court found that the claimant, having worked for the respondent for an aggregate period exceeding one month, was deemed a regular employee under Section 37 of the Employment Act. As such, he was entitled to statutory protections, including notice of termination and fair hearing. The respondent failed to provide...
Source-derived case information.
- Citation
- [2019] KEELRC 2396 (KLR)
- Parties
- Claimant: Stanley Omwitsi Matayo; Respondent: Tulsi Construction
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1855 of 2013
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim allowed for unfair termination and non-payment of notice; claimant awarded compensation and costs.
- Judges
- NJ Abuodha, DI Wasike
- Legal Topics
- Casual Employment, Unfair Termination, Notice Pay, Employment Act Section 37
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Omwitsi Matayo
Claimant
Tulsi Construction
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was a casual or regular employee entitled to protections under the Employment Act.
- 2 Whether the termination of the claimant's employment was unfair and without due process.
- 3 Whether the claimant was entitled to notice or payment in lieu of notice.
Ratio Decidendi
The court found that the claimant, having worked for the respondent for an aggregate period exceeding one month, was deemed a regular employee under Section 37 of the Employment Act. As such, he was entitled to statutory protections, including notice of termination and fair hearing. The respondent failed to provide any reason for the termination or to follow due process, and did not defend the claim. Consequently, the court held that the termination was unfair and awarded the claimant one month's salary in lieu of notice and six months' wages as compensation for unfair termination, plus costs.
Court Disposition
Claim allowed for unfair termination and non-payment of notice; claimant awarded compensation and costs.
Orders
- The respondent shall pay the claimant Kshs 24,000 as one month's salary in lieu of notice.
- The respondent shall pay the claimant Kshs 144,000 as six months' wages for unfair termination.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO 1855 OF 2013
STANLEY OMWITSI MATAYO..........................................CLAIMANT
VERSUS
TULSI CONSTRUCTION................................................RESPONDENT
JUDGEMENT
1. The claimant pleaded that he was an employee of the respondent as a mason. According to him, he was employed in July, 2011 at a daily wage of Kshs 700/=. This was raised to Kshs 800. He was later transferred to Kiuna where his salary was reduced to Kshs 700/=.
2. On 7th July, 2012, the respondent abruptly terminated his contract without giving any reason. The respondent further did not issue him with any notice. The respondent did not enter appearance nor file response to the claim.
3. At the hearing the claimant stated that he was working for the respondent as a welder at a daily wage of Kshs 700 which was increased to Kshs 800. It was his evidence that they completed work at the Swedish Embassy and moved to Kyuna. On 7th July, 2012 he went to Kyuna and was not allocated any work. The foreman told him there was no work.
4. The claim herein though was not defended it presents itself as a case where the claimant was engaged by the respondent on casual basis and whenever there was a building project.
5. The manner and the reason he gave for the termination of his service portrays how the respondent regarded him. The respondent however neither defended the claim nor attended court to cross-examine the claimant.
6. Section 37 of the Employment Act elevates a casual employee who has been employed for an aggregate period of a month or more to a regular employee for purposes of enjoying the protection accorded to regular employees in the Act in the event of termination of service.
7. The claimant was therefore entitled to be given reasons for the termination of his service and had to be taken through some capability or disciplinary hearing, the claimant was further entitled to notice of termination or payment in lieu thereof.
8. As stated earlier the respondent did not defend the claim to enable the court understand if there was a valid reason for termination and whether due process was followed.
9. The court therefore awards the claimant as follows:
Kshs
a) One month’s salary in lieu of notice 24,000
b) Six months wages for unfair termination of service 144,000
168,000
c) Costs of the suit
10. It is so ordered.
Dated at Nairobi this 8th day of February, 2019
Abuodha Jorum Nelson
Judge
Delivered this 8th day of February, 2019
Abuodha Jorum Nelson
Judge
In the presence of:-
................................for the Claimant and
................................for the Respondent.
Abuodha J. N.
Judge