Claris Ogangah
QUESTION: I understand the new labour law protects employees who were not previously protected. My house help has worked for me for over nine years and will leave this month. According to the new Employment Act, is she entitled to any service or gratuity? If so, how am I supposed to work it out?
Answer: Section 35(5) of the Employment Act provides as follows: "An employee whose contract of service has been terminated under subsection (1c) shall be entitled to service pay for every year worked, the terms of which shall be fixed.
Your house help has worked for you for nine years and you are wondering whether to pay service pay and how to calculate the same. Kindly understand that the issue is not whether or not to pay, but how much to pay because the Act is clear that employees are entitled to service pay.
To answer this question, we first need to understand how the Kenyan laws operate. Our laws do not operate retrospectively, meaning laws start operating immediately when they are enacted and not backwards.
The Employment Act came into force in 2007 and this is clear from section (1), which provides that "this Act may be cited as the Employment Act 2007 and shall come into operation on such date as the minister may by notice in the Gazette appoint".
Forced leave
However, in as much as the Act came into place in 2007 the minister gave a commencement date of June 2, 2008. This means any new provision in the Act becomes operational only from 2008, unless the Act specifically provides otherwise.
While it is good to appreciate the number of years your house help has worked for you, it is important to note that for most of this time the labour laws did not afford her any protection. The previous employment Act did not offer protection to some categories of employment and is one of the reasons it was repealed. Your house help could have been taken to be a casual employee under the old law and casuals were not afforded the protection afforded in the new law.
The new Employment Act, therefore, only protects employee’s rights as at when it came to be law. Thus any benefit accrued to your house help only in 2008 when the Act commenced operation.
However, it is important to note that this is what the law provides, which does not stop you from paying her service pay for the nine years, say on humanitarian grounds. But she cannot proceed to court to claim for the years since the law did not protect her when she commenced employment.
Therefore, simply pay your house girl 15 days salary for every year worked and include any leave pay and any other benefit you have been paying her.
