Firing casuals during off-peak unfair, court rules

The Court of Appeal has ruled that a company cannot recruit an employee in the guise of being casual depending on peak and off-peak sessions.

Justices Hellen Omondi, Fatuma Sichale and Daniel Musinga, in a ruling delivered last week, noted that subjecting workers to such treatment was unfair.

The judges further noted being laid off during off-peak season does not guarantee the worker permanency and neither can the employee look for employment elsewhere during the off-peak.

They made the observations in an appeal by Kenyatta University against a judgement delivered at the High Court in favour of a former worker, Esther Maina.

Maina had sued the institution for violating her rights and freedom by failing to recognise her as a permanent employee having worked in the organisation for nine years.

"In our view, an employer cannot have an employee under the guise of being casual on the reasoning that it has peak and off-peak sessions."

"To subject an employee to such a treatment is unfair because being laid off during off-peak season does not guarantee the employee permanency and neither can the employee look for employment elsewhere during the off-peak season."

"We are in agreement with the conclusion of Wasilwa, J. when she concluded: "This is the position in the instant petition where there is no contention that the petitioner served the respondent continuously for months on end, which cumulatively comes to over many years," read the judgement delivered on November 4 at Nairobi.

Ms Maina was employed as a secretary in August 2009 and on July 19, 2018, all the casual workers in the institution were made to sign seasonal contracts which she alleged was made under duress.

In November 2018, she said she never understood the contract yet the meeting was not held and that she was not entitled to sick off and maternity leave, complaining that there was a misrepresentation of facts in regard to salary.