House helps in Kenya win big in court battles with employers
By Kamau Muthoni | February 27th 2017
A house help who was fired without prior notice has been awarded Sh119,000 by the court.
Justice Nelson Aboudha made the award last week to Elizabeth Adhiambo after he found that she was wrongfully dismissed by her employer, Dr Shilan Vora.
Adhiambo's is just one of the various cases where employers, some who are used to changing their house helps like clothes while trampling on their rights, have been slapped with huge bills for their sins of commission and omission.
The Employment and Labour Relations Court is enforcing provisions of the Employment Act, 2007, which requires that termination of employment must be through issuance of one-month notice, notification to the labour union or office, payment of all accrued leave days and severance pay.
And you are obligated by law to keep the employment records of your domestic workers and should you fail to produce receipts in case of a dispute, the court will deem that you have not paid the salary.
The courts have given awards ranging between Sh1.2 million and Sh50,000 to house helps who have challenged their sacking without a written notice, for unfair reasons like falling sick, getting pregnant, as well as sexual harassment.
A review of recent judgments by the court show that wives and their husbands can no longer hire and fire domestic workers at will.
Justice Aboudha in his judgment last week awarded Elizabeth Adhiambo Sh119,000 for wrongful dismissal by her employer, Dr Shilan Vora.
In the case of Ms Adhiambo, Vora, her employer, had notified her that her services were no longer required.
But when Vora fired Adhiambo on April 24, 2012 she never explained the reason behind the termination. Adhiambo had worked for Vora since July 9, 2007
Aboudha said it was unfair to decide that an employee should leave without giving a valid reason.
"The respondent in this case informed the claimant that her services would no longer be needed. She was not being terminated on account of any misconduct or dereliction of duty," the judge noted.
A close scrutiny of the cases before the court by The Standard has revealed a raft of complaints from house helps ranging from unfair dismissals where they are kicked out without explanation, underpayment, lack of annual leave, being forced to work on public holidays and even sexual harassment.
The Government in 2015 raised the salary for house helps to a minimum Sh10,954 from Sh9,781.
In addition to the basic pay, employers are also required to allow their workers a compulsory weekly 48-hour break which is an equivalent of two days off and also contribute to the National Health Insurance Fund and National Social Security Fund on their behalf.
Failure to give off days, according to Regulations of Wages (General) (Amendment) Order 2015, attracts Sh527 compensation per day or Sh4,216 a month.
Back to the case, the judge ruled that if an employer wants to terminate the services of his or her house help, they have to notify them a month before and in case there are no disciplinary issues, the redundancy rule applies.
In redundancy, the employer is supposed to pay the employee one month salary plus 15 per cent severance pay for each year worked. House helps are also entitled to go for annual leave.
For the notice, Adhiambo received Sh8,723 and a similar amount for the time she worked when she ought to have been on leave.
Vora was ordered to pay her an extra Sh24,360 for the four years she declined to give her annual leave.
Another complaint raised by Adhiambo against her employer was that she was underpaid. For this, the judge gave her Sh34,747.
Interestingly, the domestic workers are also entitled to stay away from work during public holidays. It cost Vora Sh25,000 for making her house help to work on those days.
"The courts have held that the procedure for termination even in such a case (redundancy) must be followed including issuing of one month notice of termination, notification to the labour union or office, payment of all all accrued leave days and severance pay," says lawyer Sarah Okimaru.
Lawyers Judith Guserwa and John Mbaluto, told The Standard that any employee, regardless of their class, is entitled to the rights set by the law.
"Merely because a person is of a low class does not disentitle her what other employees enjoy. Employment rights are not set for a particular group of people," said Mbaluto, adding that the employment law touches on both corporates and individuals.
Guserwa explained that employers who under pay their domestic employees should compute the number of months or years they have worked and pay the arrears.
"With the current law, even a dog handler can sue you for wrongful termination. They are entitled to NSSF, NHIF among other things which include the statutory minimum pay," she said.
Current minimum pay, according to Guserwa, is Sh11,500. She added that a majority of employers do not meet the required law thus exposing themselves to punishment by the court.
In another case, a woman testified that her employer, Peter Petrausch, would pat her behind while she cleaned and tell her that Africans are stupid. In addition, she said, the employer used to touch her breasts and ask whether she was pregnant.
She further told the court that he would hurl insults at her and demand that she takes a shower before entering his house. He also demanded that they watch pornographic movies together.
One day, she told the court, he asked her to take a cup of coffee to his bedroom. When he was done with the coffee, he called her to pick the cup only to find him naked. According to the house help, he covered his private parts with the cup and demanded that she picks it.
The court was also told that on another occasion, he called her into his bedroom while he was making love to his wife. He then demanded she watches them so that when his wife was gone, she would know how to satisfy him. She protested these advances.
The employer reduced her salary without explanation. According to her testimony, he also at one time deducted her salary because she had failed to feed his dog.
She also claimed that she was required to kiss Petrausch every time after work, and would be penalised through deduction of Sh300 if she failed to do so.
In response, the man told the court that at no time did he employ her and therefore he could not be called upon to issue a notice of termination. He referred to her as a stranger.
The court did not admit the evidence on kissing but noted that the rest of the testimony amounted to serious sexual harassment and racial bigotry.
"The court accepts the evidence of NML on sexual harassment as truthful. Domestic workers must no longer be undervalued, devalued or remain invisible. Petrausch did not create reasonable working conditions for NML. Domestic workers merit the whole gamut of human rights," Justice James Riika noted.
The judge summed his finding with a declaration that her services were unfairly terminated and that she ought to be compensated for sexual harassment.
"The respondent shall, within 30 days of the delivery of this award pay to the claimant Sh1,200,000 in general damages for sexual harassment; six months' salary in compensation for unfair termination at Sh60,000 and one month salary in notice pay at Sh10,000 – total Sh1,270,000."
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