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We are continuing the analysis of the different types of contracts that an employer can give.

Contracts to perform specific work

This is a contract whose duration is tied to performance of a specified task. The contract ends immediately the assigned task is completed.

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Foreign contracts of service

Though not defined in the Employment Act, our courts have defined a foreign contract of service as ‘a contract made in Kenya to be performed outside Kenya’. It’s very different from a contract where one is expected to travel every so often or once in a while; a person on a foreign contract of service is expected to be based out of Kenya majority of the time.

A foreign contract of service should be in the prescribed form and it should be approved by the labour officer.

The labour officer will not approve the contract unless he is satisfied that the terms and conditions of employment contained in the contract comply with the provisions of the Act and have been understood by the employee and that the employee has produced a medical certificate confirming that he is fit to perform.

The purpose of these provisions is to protect Kenyan citizens who are sent to work abroad, to ensure that their terms and conditions of employment are good and that they will be evacuated in the event of an emergency.

The contract is considered invalid and unenforceable unless it’s in the prescribed form and unless it’s attested by the labour officer.

Most employers do not issue foreign contracts of service which are in the prescribed form, let alone get approval from the labour officer.

The criminal penalty for not complying with the statutory provisions on foreign contracts of service is a fine not exceeding Kshs. 200,000/= or imprisonment for a term not exceeding six months or to both.

See: –

  1. Joao Soares vs Tuegest Guerma & The African Medical & Research Foundation (file:///C:/Users/user/Downloads/Cause_689_of_2012.pdf); and
  2. Fredrick Karani M’imathiu vs Stirling Atsandi (A) Ltd (http://kenyalaw.org/caselaw/cases/view/18936/).

casualCasual contracts

A ‘casual’ is an employee who is engaged on a daily basis i.e. he is engaged for one day at a time and he is paid at the end of the day.

To most people a ‘casual’ is an employee who is engaged on a need basis and who is not in permanent employment. As long as the person is not paid at the end of the day, he is not a ‘casual’ under the Employment Act, at best, such an employee is a temporary or short term employee.

The most pertinent provisions on casual employees are those that deal with their conversion to permanent employees.

If a casual employee works for a period (whether continuous or not) of not less than one month or where a casual performs work which will take three months or more to complete, the casual cannot be terminated unless he is given not less than one months’ notice. This is a departure from the normal rules of engagement of a casual which provide that the casual contract ends automatically at the end of each day. This is what is referred to as ‘conversion’ of a casual.

The Act goes further to provide that a casual employee whose contract has been converted and who works continuously for two months or more from the date of employment as a casual shall be entitled to the same terms and conditions of service as the other non-casual employees.

Is the answer to avoiding conversion to break the service? Nope! the conversion will happen whether or not the employee is working continuously, as long as the casual works for a period (whether continuous or not) of not less than one month or where a casual performs work which will take three months or more to complete.

From the wording of the Act, if the casual does not work continuously for two months, much as he will be entitled to notice prior to termination, he will not be entitled to the same terms and conditions of service as the other non-casual employees.

A casual employee must not be paid less than the prescribed daily minimum wage, this normally changes every year; current rates can be found at http://www.africapay.org/kenya/home/salary/minimum-wages.

next post on…interns

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for 10 years. She is a repository junkie and a lover of editing.

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Comments

  1. D.O.ONGOYA says:

    Dear Anne,
    Your indication that it requires one month notice to terminate a casual contract is an eye opener.
    However, I have read and implemented many employment contracts which give 7 days notice for the termination of employment during probation period. Please clarify …….. why would a probation for an intended permanent employment be terminated by seven days notice yet a casual employment be terminated by a one month notice if the latter is presumed to be likely to take more than 3 months?

    1. Anne Babu says:

      Dr Ongoya, thank you for your comment and question.

      Regarding termination of a person on probation, Section 42 of the Employment Act gives the parties the right to terminate a probationary contract by giving 7 days notice or 7 days pay in lieu of notice. This has to be a probationary contract, that is, a contract that is only for the period of probation.

      Please refer to the article I have published regarding probationary contracts so as to see the difference between a probationary contract and a normal fixed term or open ended contract with a probation period at the start.

      Regarding the casual, one month notice is only prescribed where ‘conversion’ has taken place. I will have to paste Section 37 to provide some clarity on this: –

      37. Conversion of causal employment to term contract
      (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.

      Section 35(1)(c) provides for termination of contracts by giving of not less than 28 days’ notice.

      Therefore, if the casual has worked for one month or for an aggregate period of one month, Section 37 would have employers give one month’s notice prior to termination.

      The legal prescription is one thing, actual compliance is another. Some of these provisions are observed more in breach.

  2. Liz Karimi says:

    Dear Ann,

    Thank you for this platform, really helpful.

    Regards,
    Liz

  3. Milton L. says:

    What recourse does a person who has worked as a casual for over 10 years have incase the company stops him/her form working? can he demand leave,severance and other benefits that he could have gotten in the 10 years if he/she was on permanent employment in the same organisation?

    1. Anne Babu says:

      If the person has been working continuously then he is not a casual under the Employment Act. He is entitled to terminal benefits given to other staff and the termination should be for cause and on following the termination procedure.

  4. Brigitte Mazille says:

    Dear Anne,
    Three questions:
    1) For the gardening, I would like to engage someone on a need and daily basis (i.e. twice a week, upon the gardener’s availability), the garden being not big enough to necessitate a full time gardener.
    2) How can I get a sample contract for this?
    3) On what basis do we calculate his notice if we are not happy with him?
    Grateful for your assistance and advice on this,
    Best regards
    Brigitte

    1. Anne Babu says:

      Dear Brigitte,
      The notice period depends on the period after which the salary is paid. If you pay daily then that is a casual and no termination notice is required. If you pay weekly then the notice period is one week. If you pay monthly then the notice period is one month.
      Unfortunately we do not provide sample contracts.

  5. kevin says:

    hey Anne.. need your advice on a certain issue at work, I and 35 others were engaged as casuals by the ministry of information for a period of 3 months. that was in november 2014.since then we did not know how our contract was being renewed but we continued working because we needed a source of income. that was the norm untill four months ago when we suddenly have not received any salary and to add salt into injury we hear that our termination letters are being processed. some of our colleagues have been working under the same terms for seven years now… what can we do in such a situation according to the labour laws?

    1. Anne Babu says:

      If a fixed term contract lapses and you continue working you are deemed to be on an open ended contract. You cannot be considered a casual. A casual under the Employment Act is someone who works for a day and is paid at the end of the day. Any termination of your contract at this stage should be in accordance with due process. There must be a valid reason for the termination and the termination procedure must be followed otherwise the termination is deemed unfair and unlawful and the employer would be liable to pay damages. You need to dialogue with your employer to find out exactly what is happening then seek legal redress.

      1. Anonymous says:

        thanks for the advice.. just wanted to know if we have a case agains’t our employer, so if we receive the termination letters as is expected any time what are the steps we should take legally. do we need a lawyer to represent us? kindly explain to me the procedure. thanks once again

        1. Anne Babu says:

          One needs full details of the facts of your case before arriving at an assessment that you have a case for unfair termination. If you receive termination letters, I would advise you to see an employment lawyer or labour officer to take you through the process of commencing legal proceedings.

          1. kevin says:

            thanks alot

      2. kevin says:

        Thanks alot for the advice anne. kindly explain to me the steps we should take once we receive the termination letters. do we need a lawyer to represent our plight to an industrial court or what are the procedures within the law?

  6. Loice says:

    Dear Anne,
    I recently got a 6 month contract, but did not disclose to my employer i was expectant. I am now being forced to resign as the employer is saying i am not entitled to any leave days or maternity. My contract is supposed to expire/end on 28th Feb 2017 and i am due on 31/12/16.
    How do i go about it?

    Regards,

    LJ

    1. Anne Babu says:

      You were under no obligation to disclose your pregnancy. The Employment Act only requires you to inform your employer of your intention to proceed on maternity leave not less than 7 days to the due date. You are entitled to proceed on maternity leave up to the end of your contract. If you are forced to resign then that would be considered a constructive dismissal for which your employer can be held liable to pay you up to the end of your contract.

  7. wairimu16 says:

    Hi Anne,
    Thanks for interpreting the law so clearly. Help me out: how is a contracted employee treated? If it is one year contract, are they liable for annual leave?

    1. Anne Babu says:

      You are most welcome. Every employee is entitled to leave after working for 12 consecutive months. Therefore, if the employee does not take the leave before the end of the one year, an equivalent amount should be paid at the end of the contract term.

  8. elias says:

    hi ann I av been working as a casual paid weekly for 10months im I entitled to a leave an a paid off

    1. Anne Babu says:

      You are entitled to leave if you have worked for 12 consecutive months. If you are employed for a period that is less than 12 months, you should get pro rata leave days for the time worked. The answer, therefore, depends on the period of your contract.

  9. peter morris m kimani says:

    hi Anne,I have been working for the last 4yrs,and my employer woke up one day and decided not to allocate me any duty and no pay,no termination letter nothing,as I have normally seen many of my workmates go through.now as per my appointment letter we had agreed that I was to be working for 8hrs 40 min yet I was for 12hrs without overtime pay,no leave,no house allowance nothing,I have visited union and labour offices without getting much assistance.now is it possible to file my case direct to industrial court without a lawyer.secondly can I push my employer for violations of the employment contract. plz send UA opinion via my email adress coz I would lyk to consult further from you.thank you

    1. Anne Babu says:

      Hi Peter, yes you can file your case without a lawyer. I would advise you to contact organizations such as Kituo cha Sheria which offer free legal advise on such issues and which also have competent lawyers that can assist you. It does appear from what you have indicated that your employer has unfairly terminated you and breached a number of legal provisions.

  10. Joan says:

    Hi Anne,

    This forum is very knowledgeable, there are practical lessons not taught in any class!

    Kindly advise:-
    1. how many times can an employer renew a 3months/6 months fixed term employment contract? What are the legal implications?

    2. You have answered a question on annual leave days for the above contracts. Once the 12 months lapse, do you start counting leave days from the end of the 12 months or from when the employee started working and say they now have 21days?

    3. An employer offered to provide pension in 2012 and up to now, no deductions have been made. Is there any legal implication?

    4. What is the law for spouses working in the same organisation (colleagues in the same organisation/office but different departments are rumoured to be expecting a baby soon). How do we go about it?

    5. Can one engage you on developing a HR department?

    1. Anne Babu says:

      Hi Joan,

      Thank you for your compliments. Answers are as follows: –

      1. how many times can an employer renew a 3months/6 months fixed term employment contract? What are the legal implications? There is no limit to the number of times that a fixed term contract can be renewed as the Industrial Court has held that there should be no expectation of renewal. It is, however, advisable to make this very clear in each contract.
      2. You have answered a question on annual leave days for the above contracts. Once the 12 months lapse, do you start counting leave days from the end of the 12 months or from when the employee started working and say they now have 21days? At the end of 12 months the employee is entitled to 21 days leave.
      3. An employer offered to provide pension in 2012 and up to now, no deductions have been made. Is there any legal implication? Not unless the offer became a new / additional term of the contract in which case the employer is expected to provide the pension.
      4. What is the law for spouses working in the same organisation (colleagues in the same organisation/office but different departments are rumoured to be expecting a baby soon). How do we go about it? This is not provided for in the law, it should be dealt with in your HR policies. Some policies provide e.g for employees in a relationship to notify HR to avoid possible conflicts of interest.
      5. Can one engage you on developing a HR department? You may contact me on anne.babu@kenyaemploymentlaw.com

  11. JAMES GICHOHI MAINA says:

    Dear Anne,

    i have a casual who was working as a messenger in a hardware in Mombasa, paid Kshs. 300 per on daily basis, but only when the hardware opens. He is a gazette Vender outside the shop, meaning the messenger job is a side hustle. He has worked with the owner of the hardware for the last 3yrs,

    The hardware has now been closed, and he claims that he is entitled to service pay and notice period, in which case, there was no formal contract.

    He also claims he was being underpaid all along. He wants t take the employer to the Labour office.

    What can you advice in such a situation.

    1. Anne Babu says:

      I would argue that he was not an employee and that he was an independent contractor paid an agreed rate as and when he worked.

      1. Juliah says:

        Dear Anne
        Thank you for your all time informative articles and reply. Kindly enlighten me on the issue​ of payment where an indipendent body for example IEBC where it hires employee to curry out a one month task without any off day whether gazetted public holiday nor resting day with same pay as the normal working day.is this kind of employees entitled to double time pay. And should their wages be subjected​ to any statutory deductions?

        Warm Regards
        Juliah

        1. Anne Babu says:

          Wages must be subject to deductions if they meet the threshold. Overtime should be paid for anytime worked by an employee on a normal rest pay or public holiday – this applies to short term contracts as well.

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  14. Cancan Asembo says:

    Am a casual worker I have beev working for a certain company as a cleaner for a period of four month but now the are telling me to stop the work and the will call me after one week so my question is are they sucking me because they haven’t given me a strong reason to why am taking rest for this one week

    1. Anne Babu says:

      I do not want to speculate about the possible intentions of the company. What I can advise you is that if you have worked for 4 continuous months under the Employment Act, you should no longer be considered a casual, meaning, termination should be for valid reasons and after following the termination procedure set out in the Act, unless you are on a fixed term contract which automatically ends when the duration of the contract ends.

      1. Mrs. A says:

        Greetings Anne,

        I have a househelp of over 10 years, she was good during early years but lo late she doesn’t perform well, is absenteeism without any reason, irresponsible inspite of me still being lenient with her. I have had enough of this and finally want to gracefully release her from the employment. My questions are:-
        1. She was getting annual leave of 21 days, is she entitled to more days? If yes, how many more?
        2. Is there any severance pay for her? If yes, what is the rate, on gross or net pay (nett is 18000/- excl benefits?
        3. Any termination notice period for her?
        4. What are other guidelines for me as an employer?

        TIA

        1. Anne Babu says:

          Please have a read through the following article. If you have any other questions, do let us know. https://kenyaemploymentlaw.com/2015/11/14/the-law-the-domestic-worker/.
          Note that for termination by notice, service pay is payable and it’s computed at the rate of 15 days pay for each year worked.

  15. Eric says:

    Dear Anne

    Thanks Anne for providing very insightful information,

    If a volunteer is hired for a fixed period of time , for instance 6 months and is given some allowance or wages , are they required to pay NSSF, NHIF , PAYE.
    ii) What does the Employment Act provide , will they be more of fixed term contract employees.

    Please advise.

    Rgds,

    Eric

    1. Anne Babu says:

      Volunteers are not employees as per Section 2 of the Employment Act and as such an employer is not required to make statutory deductions i.e N.S.S.F, N.H.I.F and P.A.Y.E from the stipends or allowances paid to the volunteers.

      1. Eric says:

        Thanks Anne for providing the advice and clarification. If we give them a contract for a specific period of 6 months , and the nature of the payment is on a monthly basis , clearly specifying their duties and obligations , can it be presumed that they have a short-term contract within the context of the employment and hence subject to the statutory deductions.

        1. Anne Babu says:

          Under the Employment Act, an employee is someone who is paid a wage or a salary; as long as they do not earn a salary, they are not considered employees. Volunteers are normally given an allowance/stipend which is not a salary.

  16. Valerie says:

    Hi Anne I sent you an email a few weeks ago I haven’t gotten your reply yet. However I would like to get clarification in regards to my rights on a verbal contract. I have worked at this organization since January 2017 to date continuously, I had a break of two weeks in October on coming back my employer says I only get paid for the remaining days left in the month even though I “assumed ” to be a parmanent employee who is entitled to paid leave days. I have no written document to claim that his partner told me I was a full time employee. Kindly Advice please.

    1. Anne Babu says:

      Hi Valerie, you can show that you have been working continuously through your monthly salary presumably, in which case, you earn leave every month and it’s not right for you to be denied paid leave.

  17. Henry says:

    At what point can a casual be deducted PAYE? if one is paid like weekly and the accumulated amounts for the month exceed the taxable amount should the same be taxed?

    1. Anne Babu says:

      Apologies for the delayed response. PAYE is due as long as the payment exceeds the tax minimum threshold.

  18. Caleb Anyula says:

    Hi Madam Anne Babu,
    I just happened to get this site, very educative on matters employment. Please two questions though I anticipate may to get answers from other replies as I scroll on to read, kindly answer me;
    1. Statutory deductions on daily rated or piece rated staffs – please does it apply? And if yes how?
    2. Maternity leave for term contract staffs – how does it apply especially for contracts lasting one, three or six months?
    Thank you indeed for your guidance.
    Sincerely
    Caleb Anyula

    1. Anne Babu says:

      1. PAYE, NSSF and NHIF are dependent on the amount of the payment being made –
      if above the minimum threshold, the payment should be made – check the respective websites for the respective thresholds.
      2. Maternity leave will only apply for the period the person is in employment.

      1. Caleb Anyula says:

        Educative with Quick responses.We keep in Touch Anne. Thanks