Casual employees; what are the limits?
3 years ago
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.
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.
- Joao Soares vs Tuegest Guerma & The African Medical & Research Foundation (file:///C:/Users/user/Downloads/Cause_689_of_2012.pdf); and
- Fredrick Karani M’imathiu vs Stirling Atsandi (A) Ltd (http://kenyalaw.org/caselaw/cases/view/18936/).
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.
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