The nature of the employment relationship between the parties
19.It is common ground that the claimant’s initial engagement was on a casual basis. The dispute now is whether moving forward, her engagement metamorphosized from casual to regular term employment by operation of law.
20.Section 2 of the Employment Act is key in this regard as it defines the term “casual employee”. The term is defined to mean: -
21.Essentially, a casual employee is therefore an employee who is engaged for twenty four hours at a time. As per the provisions of section 35(1) (a) of the Employment Act, such engagement is terminable by either party at the end of the day, without notice.
22.Engagement on casual basis may be converted to a regular term contract in terms of Section 37 of the Employment Act. It is instructive to note that this conversion is significant in that, such an employee becomes entitled to the safeguards available to an employee on a regular contract of employment. Such safeguards may include, issuance of notice prior to termination or payment of salary in lieu of notice, protection from unfair termination, benefits such as leave, rest days and issuance of certificate of service.
23.Section 37 is couched as follows: -(1)Notwithstanding any provisions of this Act, where a casual employee—(a)works for a period or a number of continuous working days which amount in the aggregate to the equivalent of not less than one month; or(b)performs work which cannot reasonably be expected to be completed within a period, or a number of working days amounting in the aggregate to the equivalent of three months or more,the contract of service of the casual employee shall be deemed to be one where wages are paid monthly and section 35(1)(c) shall apply to that contract of service.(2)In calculating wages and the continuous working days under subsection (1), a casual employee shall be deemed to be entitled to one paid rest day after a continuous six days working period and such rest day or any public holiday which falls during the period under consideration shall be counted as part of continuous working days.(3)An employee whose contract of service has been converted in accordance with subsection (1), and who works continuously for two months or more from the date of employment as a casual employee shall be entitled to such terms and conditions of service as he would have been entitled to under this Act had he not initially been employed as a casual employee.(4)Notwithstanding any provisions of this Act, in any dispute before the Industrial Court on the terms and conditions of service of a casual employee, the Industrial Court shall have the power to vary the terms of service of the casual employee and may in so doing declare the employee to be employed on terms and conditions of service consistent with this Act.(5)A casual employee who is aggrieved by the treatment of his employer under the terms and conditions of his employment may file a complaint with the labour officer and section 87 of this Act shall apply.
24.It was the claimant’s case that she was employed by the respondent with effect from January, 2000 as a general labourer and that she worked continuously upto sometimes in December, 2016 when she alleges to have been dismissed from employment. This period is roughly 16 years.
25.In support of its assertion, the claimant exhibited a certificate of training awarded to her by the respondent on 27th June, 2014. The claimant further exhibited a certificate of completion of a course titled HERproject Peer Education Training. It is indicated on the said certificate that the training was from May, 2014 until June, 2015.
26.RW1 was categorical that they train all their employees including casuals. He further testified that the only training the claimant participated in, was for two weeks. Going by the certificate of completion on record, this does not seem to be the case. It is notable that the respondent did not challenge the certificates produced by the claimant in evidence. Indeed, it is rather odd that the respondent would expend resources training an employee who had the potential of being employed for only a day. This does not seem logical at all.
27.On its part, the respondent did not produce any evidence to counter the assertions of the claimant by proving that she was not in its employment regularly and continuously from January, 2000 to December, 2016.
28.On this note, it is imperative to refer to the provisions of Section 10 (7) of the Employment Act which provides that if in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1), the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer. The import of this provision is that the respondent being the employer, was under an obligation to disprove the fact that the claimant was not a casual employee.
29.In this regard, and being the party responsible for maintenance of employment records, the respondent was under an obligation to prove by way of evidence that the claimant was engaged intermittently and not for a continuous period exceeding three (3) months.
30.The respondent could have achieved this by producing the relevant work attendance records or muster roll in respect of the claimant. Evidently, it did not do any of this, hence the burden remained undischarged.
31.On this score, I am fortified by the determination by the Court of Appeal in Jackson Muiruri Wathigo t/a Murtown Supermarket vs Lilian Mutune  eKLR where it was held that: -
32.The respondent having failed to discharge its evidential burden, I am led to conclude that the contractual relationship assumed permanency and was deemed to be one where wages are paid monthly. In essence, section 35 (1) (c) of the Employment Act became applicable to the respondent’s contract of service in terms of section 37(1). Such was the determination by the Court of Appeal in the case of Nanyuki Water & Sewage Company Limited vs Benson Mwiti Ntiritu & 4 others  eKLR where it was held as follows:-
33.I am fully aligned to the above determination by the Court of Appeal and apply the same to the case herein. I must also add that the respondent’s argument that the claimant did not apply for conversion does not hold water as conversion was by operation of the law.
34.It is against this background that I find that the engagement of the claimant was converted from casual to regular term employment hence she was protected against unfair termination.
35.Having found as such, I now move to determine whether the claimant was unfairly and unlawfully terminated.
Was the claimant’s termination unfair and unlawful?
36.The claimant has alleged that she was unfairly and unlawfully terminated from employment. Pursuant to sections 43, 45 and 41 of the Employment Act (Act), an employer is required to prove that there was substantive justification to warrant an employee’s termination and that such an employee was accorded procedural fairness. Essentially, this is the standard for determining whether an employee’s termination was fair or not.
37.Section 43(1) of the Act, provides for substantive justification. It entails proof of reasons which resulted in an employee’s termination. Further, failure on the part of an employer to prove reasons for termination, renders such termination as unfair. In this regard, Section 45 (2) (a) and (b) of the Act goes ahead to provide that a termination of employment is unfair if the employer fails to prove that the reason for the termination is valid, fair and is related to the employee’s conduct, capacity or compatibility; or based on its operational requirements.
38.That is not all as there is a requirement for procedural fairness, with the starting point being Section 45(2) (c) of the Act which provides that for termination to be fair, it ought to be in line with fair procedure. Section 41(1) of the Act sets out the specific requirements of a fair hearing. This procedure entails notifying the employee of the allegations he or she is required to respond to and thereafter granting him or her the opportunity to make representations in response to the said allegations.
39.In the instant case, the respondent states that the claimant demanded to be deployed to a particular department and never showed up when her demand could not be met. Essentially, the circumstances under which the claimant allegedly left the respondent’s employment was on account of abscondment of duty and insubordination.
40.Since the respondent denied that the claimant was its employee, it did not present any evidence to prove the validity and fairness of her termination. Having found that the claimant’s employment was converted from casual basis to term contract, the respondent was bound to prove that the reasons for which it let go of the claimant, were valid and fair.
41.The respondent did not lead evidence in whatever form or manner to prove the claimant’s abscondment of duty and insubordination. No attendance register or muster roll was produced by the respondent to prove the claimant’s absence from work. Further, there was no evidence or statement from the claimant’s supervisor to the effect that she had refused to work in the department she had been assigned duty.
42.As regards fair process, the respondent was categorical that since the claimant was a casual employee, the question did not arise. Having found to the contrary, the respondent was bound to subject the claimant to the process contemplated under section 41 of the Employment Act.
43.To this end, the respondent would have asked the claimant to show cause why her employment should not be terminated for whatever reason.
44.As it is there was no indication, leave alone a suggestion by the respondent, that it undertook any process similar to the one contemplated under section 41 of the Employment Act.
45.In the circumstances, I cannot help but find that the respondent is at fault for want of procedure.
46.The totality of the foregoing is that it is my finding that the respondent’s termination was unfair and unlawful in terms of sections 41, 43 and 45 of the Employment Act.