Employees on contract for long period will now have the right to be automatically deemed to be permanent and pensionable.
In what analysts see as a sweeping boost to workers, the Court of Appeal has declared that employees have a right to be accorded dignity and certainty in their work, upholding a High Court decision that found as much.
Veteran activist Suba Churchill said the judgment—though not part of written law—forms a jurisprudence that will see workers get recognition that is commensurate to the work and time they have invested in an organisation.
The decision was rendered on November 4 by justices Daniel Musinga, Fatuma Sichale and Hellen Omondi.
The court ruled on an appeal by Kenyatta University against a labour court judgment that found in favour of employee Esther Njeri Maina.
Maina had sued the university for failing to recognise her as a permanent employee, having worked for KU for nine continuous years.
She was employed at the institution in 2009 as a secretary on casual basis and on July 19, 2018, alongside other casual employees, she was asked to sign season contract.
She claimed the contracts were signed under duress and that she was not entitled to sick off and maternity leave.
On September 26, 2018, she was made to sign another contract which became effective from October 1, 2018. She told KU management that she did not understand the contract and that salary and maternity leave issues were unclear.
The labour court agreed with her, declaring that her right to fair labour practices was infringed by the university.
It ordered that having worked for the institution for about a decade, Maina automatically was deemed to be on permanent and pensionable terms and that her remuneration and benefits must reflect as much.
“A declaration that the nature of her employment relationship with respondent is not casual or temporary but permanent and pensionable with effect from the date of this judgment,” the court ruled.
“The respondent should henceforth issue the petitioner with a contract detailing the nature of this contract as per the law and in tandem with other permanent and pensionable employees who are permanent and pensionable on her grade.”
In the appeal, the university argued that Maina was under a contract, which could not be varied by any court of law.
“[The university] contended that a court cannot convert a fixed term contract to a permanent contract of employment as the respondent was employed in a three months’ contract and was not a casual employee employed on a daily basis; that a fixed term contract cannot be equated to casual employment,” the judgment read.
But Maina countered that section 37(4) of the Employment Act permits a court to vary the terms of service of a casual employee.
She also argued that having worked for the institution for 11 by 2020 when the case came up, she was not a casual employee and hence her contract had assumed permanency.
Churchill told the Star that the decision is transformative and that it yields power to the hands of workers who have had to toil on season contracts for a long time without some certainty and progress.
“This judgment, coming from such a superior court, is groundbreaking in helping casual workers in Industrial Area, plantation farms or in any other setting who have had to contend with short term and poorly negotiated contracts until retirement,” he said.
“In many cases, the employers take undue advantage of the biting unemployment in the country to put workers on unfavorable casual terms for time on end knowing that you have no option and that if you left, there is a ready labour waiting to replace you.”
Edited by Henry Makori
