In Kenya, the legal framework governing employment relationships provides clear guidelines regarding casual employment and the conversion of casual labor to permanent employment. The case of Ruth Ndeto Mwiso v Vegpro (K) Limited [2022] KEELRC 1538 highlights key issues in the nature of casual employment and its transformation into regular employment under the Employment Act. The case provides valuable lessons for both employees and employers regarding rights, obligations, and the consequences of failure to comply with statutory provisions.
- Nature of Casual Employment
The term casual employee is defined under Section 2 of the Employment Act as someone engaged for a period not exceeding 24 hours at a time, and their wages are paid at the end of each day. Such employment can be terminated at the end of each day without notice. The respondent in the Mwiso v Vegpro case argued that the claimant was a casual worker whose employment was terminated at the end of each shift, thereby denying her claims of unfair termination and entitlement to remedies such as service pay or notice.
However, casual employment in Kenya is not indefinite. If a casual worker is engaged for a longer duration or works continuously for more than a month, the law steps in to protect the worker by converting the employment to a regular term contract.
- Conversion from Casual to Regular Employment
Under Section 37 of the Employment Act, the law mandates that if a casual employee works continuously for a period amounting to a month or more, or if the nature of the work cannot reasonably be completed in less than three months, their contract automatically converts to one where wages are paid monthly, and they are entitled to regular employment protections. This includes notice before termination, protection against unfair dismissal, and entitlement to employment benefits such as leave and rest days.
In Mwiso v Vegpro, the claimant argued that she worked continuously for the respondent from January 2000 to December 2016, amounting to nearly 16 years of employment. She was engaged daily and received training, indicating that her work was integral to the company’s operations and not a temporary or intermittent engagement. The court held that her employment had, by operation of law, converted from casual to permanent employment under Section 37.
This Judgment emphasizes that employers cannot escape their obligations by merely labeling employees as “casual” when the reality of the employment relationship suggests otherwise. Once an employee meets the statutory threshold, their status is converted, and they enjoy all the protections of regular employees.
- Fair Termination
Even if an employee starts as a casual worker, once their employment status is converted, they are entitled to procedural and substantive fairness under Sections 43, 45, and 41 of the Employment Act. This includes providing a valid reason for termination and ensuring the employee is taken through a fair hearing process. In Mwiso v Vegpro, the court found that the claimant was unfairly terminated since the respondent failed to provide a justifiable reason for the termination and did not follow the fair procedure required by law. - Record Keeping and Proof of Employment Status
An essential lesson from this case is the burden of proof placed on employers to maintain proper employment records. Under Section 10(7) of the Employment Act, if an employer fails to produce a written contract or employment records in a dispute, the burden of disproving the employee’s claims shifts to the employer. In the Mwiso case, the respondent failed to provide sufficient records proving that the claimant was engaged intermittently as a casual worker, leading the court to conclude that she had worked continuously for the respondent. Employers must maintain detailed records of casual workers to avoid potential claims for conversion and unfair termination. - Rights of Converted Employees
Once casual employment is converted under Section 37 of the Employment Act, employees are entitled to:
- Notice before termination or payment in lieu of notice (Section 35).
- Protection from unfair dismissal under Section 45.
- Entitlement to leave days, rest days, and public holidays.
- Employment benefits such as service pay, as provided in the Employment Act.
In the Mwiso case, the claimant sought damages, including one month’s salary in lieu of notice, compensatory damages for unfair dismissal, and service pay, all of which are consistent with the rights of a converted employee under the Act.
Key Takeaways for Employers and Employees
For Employers:
- Properly manage and document casual employment to ensure compliance with the Employment Act.
- Understand that long-term engagement of casual workers can lead to automatic conversion to permanent employment, with attendant legal obligations.
- Follow fair procedures when terminating employees, regardless of their initial status as casual workers, especially if their status has been converted.
- Ensure that employment records are accurate and comprehensive to prevent disputes about the nature of the employment relationship.
For Employees:
- Casual employees working for extended periods or continuously for more than a month should be aware of their right to have their employment status converted under the law.
- If their employment has been converted, they are entitled to the same rights and protections as regular employees, including fair termination processes and access to employment benefits.
- In case of disputes, employees should gather evidence, such as pay slips or training certificates, to demonstrate their long-term or continuous engagement.
Conclusion
The Mwiso v Vegpro (K) Limited case reinforces the need for employers to adhere to the statutory requirements governing casual employment and underscores the importance of fair treatment of all employees, regardless of their employment status. Casual workers who meet the conversion criteria are entitled to the full range of employment protections under the law, and employers must be vigilant in maintaining proper employment practices to avoid legal disputes.