The African Legal Network (ALN) regularly sends out well
informed and educative legal updates, and recently sent one relating to a
topical decision made by the Employment and Labor Relations Court.
The African Legal Network (ALN) regularly sends out well
informed and educative legal updates, and recently sent one relating to a
topical decision made by the Employment and Labor Relations Court.
The ALN update highlighted the case of a lady we shall refer to as Catherine, who sued her employer for unlawful termination.
The
employer, who walks and talks amongst us had been paying Catherine an
astonishing monthly sum of Sh3,000 from February 2015 until December
2016.
The
ALN update highlighted the case of a lady we shall refer to as
Catherine, who sued her employer for unlawful termination. The employer,
who walks and talks amongst us had been paying Catherine an astonishing
monthly sum of Sh3,000 from February 2015 until December 2016.
It
appears that in December 2016, Catherine realised that she was the
victim of a gross injustice on the salary scale as the legal minimum
wage for a house help at the time was Sh10,107. She did what any
reasonable and recently awakened individual would do: asked for a pay
raise. Her employer, who walks and talks amongst us was not trying to be
legally compliant and likely figured that unsuspecting Kenyans like
Catherine were in greater supply han there was demand. The employer
unceremoniously terminated the employment.
But whatever
had led Catherine to wake up to the fact that she was being exploited,
clearly continued to guide her on that illuminating journey and she
found her way to court to try and cure the grievance.
The
presiding judge, Nduma Nderi, remedied the injustice by holding that
the termination o
Frankly speaking, by the time I was getting to the part about
what the good judge’s decision was, I was still reeling from the
eye-watering amount of peanuts that Catherine’s employer purported to
pay her in this day and age. But the judge was not finished with his
dispensation of justice, which is where we need to wake up and pay
attention.
Justice Nderi held that an employer must
give an employee, including a house help, one month’s notice before
terminating an employment contract, pay all applicable benefits and
provide the employee with a certificate of service. I shared the legal
update with a number of my friends and it was quite interesting that a
number of them responded to me asking the exact same question: What
happens if the employee leaves of their own volition? Shouldn’t they
also have the same requirement to give notice?
I would
imagine that the answer is yes, since an employment contract is a
two-way agreement and the notice of termination aspects in most
contracts is a requirement for all the contracting parties. So if your
employee goes absent without a trace, they will have breached their
requirement to give notice and should not be in a position to claim for
this, especially since they have terminated the contract abruptly
without so much as an “It’s been real working for you, but I have to go
now.”
But what this case brought to mind is that in as
much as I write about corporate governance, there is a basic domestic
governance that should prevail in all our homes where we have employed
people to help us with the work around the house, the garden or to
provide security. In Justice Nderi’s judgement, he found that the
employer who as I have said before, walks and talks amongst us, had
failed to register the house help with the National Social Security
Fund(NSSF) and the National Hospital Insurance Fund(NHIF). He awarded
Catherine a total of Sh270,964 including interest from the time of
judgement and ordered that she be issued with a certificate of service
within 30 days.
We cannot sit in our air conditioned
and carpeted offices - well maybe that has been replaced by our dining
tables in these Covid-19 times – and work for organisations claiming
that we are part of managing a compliant system when our domestic
situations warrant divine intervention. We should expect, quite
reasonably I must add, that the same rules that we demand of our own
employers should be applied to our domestic staff. A clean and safe
working environment, decent working hours, lawful remuneration and the
legally required statutory contributions for pension and medical needs.
It
beggars belief that we can shout from the rooftops that our needs as
employees are not being met, when we as domestic employers are treating
our workers unfairly. Governance, just like charity, begins at home.
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