Case Metadata |
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Case Number: | Cause 393 of 2012 |
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Parties: | Charles Opati Ogeyo v W.E. Tilley (Muthaiga) Ltd 2011 |
Date Delivered: | 31 Jul 2014 |
Case Class: | Civil |
Court: | Employment and Labour Relations Court at Nairobi |
Case Action: | Judgment |
Judge(s): | Nzioki wa Makau |
Citation: | Charles Opati Ogeyo v W.E. Tilley (Muthaiga) Ltd 2011 [2014] eKLR |
Court Division: | Industrial Court |
County: | Nairobi |
Case Summary: | Prerequisite for Foreign Contract of Employment Charles Opati Ogeyo v W.E. Tilley (Muthaiga) Ltd 2011 [2014] Cause No 393 of 2012 Industrial Court of Kenya at Nairobi N Makau J July 31st, 2014
Reported by Emma Kinya Mwobobia and Opiyo Lorraine
Brief Facts The Claimant in the instant matter instituted proceedings against the Respondent in respect of work done for the Respondent in Tanzania. He claimed that he was the Respondent’s employee and that he had been posted in Tanzania to construct a factory where he got injured and could no longer perform his duties. He claimed that the Respondent failed to renew his work permit and pay him the necessary benefits. In addition he stated that he was forced to sign a letter of resignation by the ‘employer’ and thus was the basis for his claim before Court. The Respondent herein however denied the fact that the Petitioner was his employee. Issues i. Whether the Claimant was the Respondent’s employee ii. Whether the resignation of the Claimant was constructive dismissal from employment iii. Whether the Respondent followed the guidelines set out in the Employment Act in terminating the employment services of the Claimant iv. Whether the reason(s) for termination of the Claimant’s employment were justified and whether the same were fair. v. Whether there were any remedies available to the Claimant
Employment Law – foreign contracts – status of a person employed under a foreign contract - whether a person who had been contracted for services in a foreign country could be said to be an employee and whether such a person was entitled to receive the requisite employment benefits.
Employment Act 2007 Part XI Section 83 “A foreign contract of service shall be in the prescribed form, signed by the parties thereto, and shall be attested by a labour officer.” Section 84 “A foreign contract of service shall not be attested unless the labour officer is satisfied (a) that the consent of the employee to the contract has been obtained; (b) of the absence of any fraud, coercion or undue influence, and any mistake of fact, or misrepresentation which might have induced the employee to enter into the contract; (c) that the contract is in the prescribed form; (d) that the terms and conditions of employment contained in the contract comply with the provisions of this Act and have been understood by the employee; (e) that the employee is medically fit for the performance of his duties under the contract; and (f) that the employee is not bound to serve under any other contract of service during the period provided in the foreign contract.” Section 85 “(1) When the employer who enters into a foreign contract of service does not reside or carry on business within Kenya, the employer shall, or where the employer resides in Kenya, the labour officer may require the employer to, give security by bond in the prescribed form, with one or more sureties resident in Kenya and approved of by the labour officer for the due performance of the contract in such sums as the labour officer considers reasonable. (2) Where the employer has an authorized agent resident in Kenya, the Minister may require that the security bond specified in subsection (1) be given by the agent and the agent shall personally be bound by the terms of the bond notwithstanding the disclosure of his principal.”
Held 1. The Claimant had no contract of service and if indeed he was hired to work in Tanzania then he ought to have obtained a contract in terms of Section 83 and 84 of the Employment Act. The records showed that the Claimant was not an employee of the Respondent at the material times. He thus had no valid claim against the Respondent who had what appeared to be a hawala system of payments. 2. The Claimant was not an employee of the Respondent and his resignation did not amount to a constructive dismissal from appointment. The Respondent did not terminate the services of the Claimant based on the guidelines in the Employment Act. 3. As to whether the reason(s) for termination of the Claimant’s employment were justified and whether the same were fair, there was no termination of employment and thus the issue did not arise. Consequently there were no remedies available to the Claimant. Suit dismissed no order as to costs.
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REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
CAUSE NO. 393 OF 2012
CHARLES OPATI OGEYO……...................................…CLAIMANT
VERSUS
W.E. TILLEY (MUTHAIGA) LTD 2011……........…RESPONDENT
JUDGMENT
1). Whether the Claimant was the Respondent’s employee
2). Whether the resignation of the Claimant was constructive dismissal from employment
3) Whether the Respondent followed the guidelines set out in the Employment Act in so terminating the employment services of the Claimant
4). Whether the reason(s) for termination of the Claimant’s employment were justified and whether the same were fair.
5). What remedies are available to the Claimant
83. A foreign contract of service shall be in the prescribed form, signed by the parties thereto, and shall be attested by a labour officer.
84. A foreign contract of service shall not be attested unless the labour officer is satisfied?
(a) that the consent of the employee to the contract has been obtained;
(b) of the absence of any fraud, coercion or undue influence, and any mistake of fact, or misrepresentation which might have induced the employee to enter into the contract;
(c) that the contract is in the prescribed form;
(d) that the terms and conditions of employment contained in the contract comply with the provisions of this Act and have been understood by the employee;
(e) that the employee is medically fit for the performance of his duties under the contract; and
(f) that the employee is not bound to serve under any other contract of service during the period provided in the foreign contract.
85.(1) When the employer who enters into a foreign contract of service does not reside or carry on business within Kenya, the employer shall, or where the employer resides in Kenya, the labour officer may require the employer to, give security by bond in the prescribed form, with one or more sureties resident in Kenya and approved of by the labour officer for the due performance of the contract in such sums as the labour officer considers reasonable.
(2) Where the employer has an authorised agent resident in Kenya, the Minister may require that the security bond specified in subsection (1) be given by the agent and the agent shall personally be bound by the terms of the bond notwithstanding the disclosure of his principal.
Orders accordingly.
Dated and delivered at Nairobi this 31st day of July 2014
Nzioki wa Makau
JUDGE