A tailor who dedicated more than four decades of his life to a private education institution has finally been vindicated after a court ruled his termination unfair, awarding him Sh1.46 million in compensation.
The dispute dates back to May 31, 2023, when the tailor’s engagement was abruptly terminated.
After working continuously for 43 years on what he described as a minimum wage, Gilbert Obare Apondi received a one-off payment of Sh50,000, which the institution described as a goodwill gesture.
Dissatisfied with the termination and claiming it was abrupt
and unjustified, the tailor filed a case in the Employment and Labour Relations
Court, seeking redress for what he described as unfair dismissal.
He argued that he had served the institution faithfully since October 1979, yet his termination was sudden and without proper notice.
"It is the claimant’s (tailor) claim that his termination was abrupt and without notice, and that the respondent (institution) unfairly cited ‘reduced work’ as the reason," stated the judgement.
His monthly salary, he claimed, was Sh10,990, below the applicable minimum wage.
For over four decades, he alleged, he had never taken leave nor received leave allowances.
The one-off payment of Sh50,000, he contended, was treated as acknowledgment of an employment relationship rather than a mere goodwill gesture.
"He characterises the termination of his engagement as a redundancy process conducted in violation of Section 40 of the Employment Act 2007," court documents noted.
In his claim, the tailor sought multiple forms of relief, including one month’s notice pay (Sh29,674), Sh356,097 as twelve months’ compensation, severance pay for 43 years of service amounting to Sh638K , a further Sh814,488 as leave pay for the same period, and underpayment of wages totaling Sh1,123,995.55
His total claim amounted to Sh2,962,263.00.
The institution, however, disputed these claims.
It argued that the tailor had been engaged as an independent contractor on a casual, piecework basis, providing tailoring services intermittently during periods of high demand, such as school admissions.
It maintained that his payments were based on the number of uniforms or alterations completed and that the Sh50,000 paid in 2023 was an "ex gratia gesture" (voluntary payment out of goodwill), not terminal dues as had been alleged.
The institution insisted that the tailor had accepted the payment voluntarily and that it could not be construed as evidence of an employment relationship.
"That it was intended to appreciate his long-standing association with the school, not to acknowledge an employment relationship," the judgement states.
The school therefore maintained that the Claimant’s claim is wholly misconceived, and that the suit should be dismissed with costs.
The court heard evidence from both parties over multiple sessions.
The tailor testified on his own behalf, while the institution presented its Finance and Human Resources Manager, Procurement Officer, and Accountant.
Both sides relied on documents filed with their pleadings.
The tailor produced a range of evidence, including leave application forms from the early 1980s, a casual employment letter from 2019, bank statements showing monthly payments, NSSF contributions, newsletters recognising his long service, certificates of merit, and correspondence from the county labour office urging the institution to resolve the dispute.
The institution countered with documents showing that the work was irregular and tied to specific periods of demand.
Payment records suggested varying amounts based on piecework rather than a regular salary.
Under cross-examination, the tailor admitted he had no formal long-term employment contract, staff number, or identity card, and that some of his payments had been irregular.
The institution also argued that occasional NSSF contributions were voluntary and did not establish an employer-employee relationship.
The central question before the court was whether the tailor was an employee or an independent contractor.
"The court is called upon to inquire into the entire spectrum of facts and circumstances to establish whether an employer/employee relationship as defined in the Employment Act, 2007 actually exists," Senior Principal Magistrate Peter Ndege noted.
He said that a casual employee who works continuously for a period equivalent to at least one month, or performs work expected to last three months or more, is deemed to have converted to a monthly-paid employee under the Employment Act.
In this case, the court found that despite the institution’s claims, the documents presented by the tailor were sufficient to establish a continuous and enduring working relationship.
The casual employment letter from 2019, although covering only six months, combined with decades of service records, certificates, and payment history, proved that he had been effectively employed for 43 years.
The court also rejected the institution’s argument regarding retirement age.
While it claimed that the tailor was above 60 and that the law supported retirement at that age, the court clarified that private institutions are not bound by public service retirement rules.
"The respondent did not produce evidence of policy that its employees retire at age 60 or explain why the Respondent was retired at that age above 60 if that was the Respondent’s policy," he observed.
Having established the existence of an employment relationship and the absence of proper procedures for termination, the court ruled that the tailor had been unfairly dismissed.
Regarding the remedies, the court determined that he was not entitled to severance pay or annual leave compensation due to insufficient evidence of formal leave applications and the presence of NSSF contributions.
However, taking into account his decades of service, the court awarded him 12 months’ salary as compensation, notice pay for one month, and reimbursement for underpaid wages, totaling Sh1,509,767.
After deducting the Sh50,000 previously paid, the net award amounted to Sh1,459,767.
The tailor was also granted costs and interest at court rates.
