I had been working at a tea farm and I was being paid a daily wage for the last four months. A few weeks ago, my employment was terminated without notice at the end of the day as I was receiving my wage, and I was not given a reason for the termination. Do I have a recourse in law?
A casual employee, according to s. 2 of the Employment Act 2007, refer to “a person the terms of whose engagement provide for his payment at the end of each day and who is not engaged for a longer period than twenty four hours at a time”. This means that a casual labourer is characterized by daily payment and a working period not longer than a day.
Casual employment may be converted to a term contract under s. 37 of the Employment Act if the work has been continuous for a month, or the work performed by the casual worker cannot reasonably be expected to be completed within a period of three months.
This simply means that where a person engages in casual labour continuously for a month, the law considers the labourer an employee with a term contract, whose wages are deemed to be paid monthly, as per application of s. 35(1)(c).
As far as dismissal and termination is concerned, a casual labourer may be dismissed or have their contract terminated at the close of any day without notice, as stipulated at s. 35(1)(a) of the Employment Act.
However, once a casual labourer has been converted to a term employee by virtue of s. 37, the law at s. 35(1)(c) requires that a written notice of 28 days be given to the employee. S. 37 goes further on to provide for the protection of the rights of a casual labourer whose contract of service has been converted to term employment by stating that if the person works for two or more months continuously, from the date of employment as a casual employee, that person shall be entitled to terms and conditions of service that he or she would have been entitled to under the Act had he not initially been employed as a casual employee.
Basically, if a casual labourer is converted to a term employee and continues working for two months, he will be entitled to be treated as if he had been employed under a term contract right from the first day of his service. This would mean that even upon termination, the employee is entitled to a notice of termination at least 28 days prior, along with a reasonable explanation for the reasons for termination.
In the case of Humphrey Omondi v Vishnu Builders Ltd (2013), the court found that the claimant was not a casual labourer as he had worked with the defendant company for around eight years and was furthermore not paid on a daily basis but on a weekly basis. The court found in the claimant’s favour, ruling that his employment had been terminated unfairly without notice.
Further, in another case of Kesi Salim v Kwale International Sugar Co. Ltd. (2017), the court found that the claimant’s contract of service had been converted to a term contract under s. 37 as he had worked at the defendant’s farm for longer than a month, and had further continued working there for several years. Hence, the respondent was barred by s. 45 of the Employment Act from terminating the claimant’s contract without 28 days prior notice in writing.
In the question at hand, the casual worker was paid daily for work undertaken at the employer’s construction site, work which he did continuously for four months. This leads us to s. 37 on conversion; as the work was carried out consistently for longer than a month, the employee no longer falls under the bracket of a causal labourer but an employee under a term contract. As such, the employer had a legal duty under s. 35(1)(c) to give the employee a written notice 28 days prior to the dismissal.
Furthermore, we can conclude that the employee was dismissed unfairly without any written notice or explanation of reason for termination as stipulated under s. 45 of the Act. As such, the worker has a recourse in the law against the employer. The law sees him as an employee under term employment and not a casual labourer as he has satisfied all the criteria for conversion of the contract of a casual labourer to term employment as required by s. 37 of the Employment Act.
Source: Free Legal Advice Kenya Read More
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