A string of recent court rulings that determined minimum requirements that must be met before terminating a househelp's services has hit families hard.
The rulings revealed that some of the issues families take for granted while hiring and terminating the services of househelps are crucial to the provisions of the Employment Act.
As a result, some families have had to shoulder huge awards to househelps including footing their lawyers’ costs, running into hundreds of thousands of shillings.
Arguments by families that they provide househelps with free housing, food, medical and other support have not helped much.
Mr and Mrs Birdi Singh employed their househelp on January 4, 2013 and she served until April 11, 2014.
A May 1, 2014 legal notice number 197 required that househelps’ salaries be increased to Sh9,780 per month plus 15 per cent house allowance, Sh1,467, totalling to Sh11,247.
Though the Singhs had faithfully paid the househelp Sh8,000 per month, Employment and Labour Relations Court Judge Byram Ongaya ruled that they breached the law by underpaying her.
“The court finds that the claim for underpayment is established, Mr and Mrs Singh provided housing but the househelp opted not to use it,” Justice Ongaya ruled last week while also condemning them to pay her salary arrears and the lawyer’s costs. The final amount is yet to be determined.
Mr Singh had stated that the househelp did not deserve an award because they had supported her extensively.
For instance, he said, they gave her Sh200,000 to assist her relative who was a victim of the 2013 Westgate Shopping Mall terrorist attack.
He said the househelp did not account for the money and even skipped work for six days.
She was a habitual absentee worker, he claimed, whose excuses included taking her sick child to hospital, sorting out domestic issues with her husband, and attending funerals and social gatherings.
Mr Singh, 71, told the Nation that the ruling frustrated him. “We are old and the court is slowly killing us.
“I wish the court could have considered the Sh200,000 I gave her in its ruling,” he said.
“I am constrained to pay. I feel like she is extorting money from me.”
Most Kenyan employers get rid of their househelps by merely asking them to pack and leave after paying their salary balance. This is illegal. However, househelps can also be in the wrong.
In one of his rulings, judge James Rika observed that a domestic worker who repeatedly refused to answer her employer’s calls in front of his guests committed gross misconduct.
The househelp had also extended her leave unilaterally by three months. She did not give any reason for her absence.
“The househelp engaged in insubordination. There was valid and fair reason to justify termination under Section 43 and 45 of the Employment Act,” ruled Mr Rika.
But before an employer sacks a worker for gross misconduct, Labour Court Judge Linet Ndolo observed, he must observe Section 41 of the Employment Act.
The section establishes the procedure for handling cases of misconduct.
It requires the employer to explain to the employee reasons for their sacking. Also, the employer should invite a representative of the employee – either a fellow employee or a union representative – to be present during the explanation.
The employer should also listen to the employee’s side of the story.
“In my view, the nature of employment in this case did not call for a sophisticated disciplinary process but the househelp was entitled to some form of hearing prior to the termination of her employment.
“There was no evidence that she was afforded any opportunity to defend herself before her employer,” observed Justice Ndolo while faulting an employer who had sacked a househelp.
Under the Employment Act, a verbal contract is still a contract that confers rights on the employee, which can be enforced.
This means that though most househelps are engaged verbally, the contract is binding and legal.
Labour Court Judge Monica Mbaru observed in a case involving a househelp that “all employers should seek at the earliest opportunity to reduce oral contracts and instead put them in writing.
“This would help in spelling out terms and conditions of engagement between the two parties. It is also the duty of every employer to keep employee records,” she said.
“This court notes that many employers fail to issue their employees with a contract of service, which acts to their detriment as non-issuance of this document leaves the court to interpret the relationship between the parties, which could have been well outlined by the mutual agreement of the parties,” she went on.
The judge pointed out that terminating the services of a househelp on grounds that she is too old to serve is unlawful.
Section 31(1) of the Employment Act provides that an employer shall provide reasonable housing for his or her employees either at, or near, the place of employment. Alternatively, the employer should pay the employee money for rent, in addition to other statutory wages. Labour Court Judge Jorum Abuodha said an employment relationship is terminable by either party, provided the party initiating the move complies with the law.
“This is to say that the party initiating the termination, where it’s an employer, ought to give reason and notice for the termination as per the contract or as provided in the Employment Act,” he said.
Law experts also urge househelps to leave of their own volition when their jobs become redundant, especially when the baby they were hired to look after grows up.
Employment and Labour Relations Court Judge Onesmus Makau said that, before declaring the househelp redundant, the employer should comply with Section 40 of the Employment Act.
It requires the employer to, among others, notify the employee’s union and the labour officer of the worker’s plight.
The boss should also notify the househelp in writing of the reasons and extent of the redundancy.
The notification should be done not less than one month prior to the date of the intended termination of employment.
The affected employee is entitled to payment of leave due and one month’s salary in lieu of notice. The employer is also expected to foot severance pay at the rate of not less than 15 days pay for each year of service.
“An employee does not lose his right to be notified of an intended redundancy or to be protected by the labour office just because he is not a member of a trade union,” Justice Makau said.
Further, the employer is the custodian of the employee’s records, hence the burden of proving or disproving the employee’s allegations lies on his shoulders, and this includes househelps.