Elgeyo Border Wheat Farms Ltd. V. R., Crim. App. 129-A-67, 22/5/68, ----------------- J.

Elgeyo Border Wheat Farms Ltd. V. R., Crim. App. 129-A-67, 22/5/68, ----------------- J.

Accused companies were convicted of failing to pay certain contributions to the fund under section 38(1)(d) of the National Provident Fund Act, Act No 36 of 1964. There is no dispute as to accused ’s permanent employees. The dispute concerns additional persons who picked coffee for the companies during harvest season. These persons were paid according to the number of tins of cherry coffee they picked and were not required to word for any specified

Period of days or number of hours per day. They were paid at the end of the day or the end of the week as they chose. Some were women and children. Accused argued, in the alternative, that (a) no employment relationship existed between the companies and these people, or (b) that they were not “temporary employees” as defined by section 2 of the Act.

            Held: (1) There is doubt as to whether any employment relationship existed between the companies and some of these persons, such as some of the women and children who worked only occasionally. However, no evidence was taken on this issue, and it will be assumed that they were all employees. (2) Section 17 (2) of the National Provident Fund Act provides that a special contribution shall be made to the fund for temporary employees. “Temporary employee engaged on a daily contract of service who has not been employed by that employer for a continuous period of three months …..” It is conceded that the persons in question were not employed for more than three months. “Contract of Service” is defined with reference to the Employment Ordinance, Cap. 366 which, as amended, provides that it “means any contract, whether in writing or oral, … to employ or to serve as an employee for any period of definition of “contract of service” has been incorporated from the Employment Ordinance, it is appropriate for the court to examine other relevant provisions of that Ordinance Section 34, as amended by the Security of Employment Act, No. 62 of 1964, provides that where there is a “contract of service under which a task or piece work is to be executed,  …. Such contract shall … for all purposes be deemed to be a contract of service for the performance of work of the kind envisaged in such first-mentioned contract of service or a period of time which, in the absence of any agreement between the parties for a lesser period, shall be deemed to be a month.” This section is subject to varying interpretations, and it is unclear whether the employees should be treated as persons employed for period of a month or persons for whom there was no specified period of employment. However, in neither case would they be engaged on a daily contract of service, and therefore, the charge was not proved. (4) By the proviso to section 39(1) of the National Provident Fund Act, there shall be annexed to he complaint schedule setting forth information as to each individual employee. Such a schedule was not presented in the present case. Convictions quashed.