A manufacturing firm was in the habit of recruiting casual employees because of their often increasing workload. Although it had a number of employees, most of their work needed support from casuals on a daily basis. And so for five years, the company would engage approximately 50 casuals daily. The organization was able to automate its process and so they decided to do away with the casuals because of the new system. The newly-acquired machine was able to manage the counting and packing of their items, and as a result rendering the casual staff redundant.
The casuals reported the matter to the industrial court and the company was sued for approximately Kshs.600, 000 for redundancy compensation. The staff also claimed 21 leave days per year, one rest day per week for the years worked and adjustments of their salaries as per the yearly salary increments gazetted by the government.
I was asked to represent the company at the labour office, and this was my first time to undertake such services. I went to the reception and found approximately 20 men seated, but the labour officer who was mediating over the matter was not in the office and so we had to wait for him. Ten minutes passed and I decided to speak to a staff at the office. I stood up and walked towards the door but about five men rushed to the door to block the entrance and ensure that I do not leave the building. This is when I realised that they were the aggrieved party.
Most organizations assume that if they do not give an employee a contract of employment then they are not bound by the Employment Act. However, the employment contract can either be written or unwritten. During the mediation process at the industrial court, the casuals expressed their frustration with the organisation and only asked to be paid what was due to them as per the Employment Act.
So as to mitigate the exposure the following is suggested:
- If some specified work cannot be completed within three months, then the contract should be in writing.
- If the casual performs work which cannot reasonably be expected to be completed within three months or more then the contract is automatically converted from casual employment to a term contract. The employee is therefore entitled to terms and conditions indicated in the Employment Act.
- Various salary adjustments are made on Labour Day for various industries and occupations. Ensure that you buy the gazette notice or have access to the Kenya Law website [http://kenyalaw.org] to avoid exposure.
- If you do not have a human resource staff/practitioner, seek advice from a professional before you terminate the services of an employee.
Back to the court case, since the casual employees were being paid daily it was an uphill task for both parties to prove that they had indeed worked for the organisation for the period they were claiming. The casuals did not pursue the case any further.
