The Law & the domestic worker
2 years ago
A happy separation?
Malina was relieved that Sophie, her former domestic help, had taken her termination well. Sophie’s cleaning standards never matched up to Malina’s; her energy levels were low and she seemed to be constantly overwhelmed.
No day went by without Malina articulating, as clearly and politely as she could, all of Sophie’s daily infractions. Sophie accepted that she was not able to keep up and that it was best for her to leave. It was an amicable separation.
One month later, as Malina is parking, the guard delivers a letter to her; the letter was left by Sophie. Malina tears open the envelope and to her complete surprise, the letter is from the Labour Officer informing her of a complaint made to the labour office by Sophie for unfair termination.
The Labour Officer demands that Malina pays Sophie terminal dues comprising: –
- 1 month’s notice pay;
- The equivalent monetary payment in respect of Sophie’s accrued annual leave;
- Overtime for the five months Sophie worked;
- Kshs. 10,000/= in respect of her salary underpayment;
- Service pay; and
- 12 months’ salary being damages for unfair termination.
Surely the law is on Malina’s side?
After 10 minutes of silence and no movement, Malina calls her lawyer to find out if there is any legal basis for the demand; the answer is to this question leaves Malina completely bemused by the turn of events.
A domestic worker is an employee like any other and the provisions of the labour laws apply equally to them.
If a domestic worker is employed for 3 months or more or for a period that amounts to 3 months or more, then the employer is expected to draw up an employment contract.
The contract should contain the prescribed particulars of employment, that is, the form and duration of the contract, a job description, remuneration and all applicable benefits, leave entitlements, hours of work and the applicable termination notice period.
Note that the contract need not be long, a one or two pager can capture all the required details.
It is the employer’s responsibility to ensure that the domestic worker understands all the terms of employment and, therefore, interpretation of the contract may be necessary.
It is also the employer’s responsibility to ensure that the contract is consented to by the employee by way of a signature or a thumbprint.
Like any other employee, the domestic worker is entitled to the statutory minimums: –
- Annual leave must not be less than 21 days;
- Sick leave must not be less than 7 days on full pay and 7 days on half pay;
- Maternity leave must not be less than 90 days;
- Paternity leave must not be less than 2 calendar weeks;
- Not less than 1 day of rest in every seven-day period;
- Their remuneration must not be less than the prescribed minimum wage; currently, Kshs. 10,955/= for those working in Nairobi, Mombasa and Kisumu — NOTE: THE MINIMUM WAGE WAS INCREASED BY 18% WITH EFFECT FROM 01/05/2017.;
- Where applicable, the requisite statutory deductions should be made from their pay, that is, P.A.Y.E, N.H.I.F and N.S.S.F deductions.
To protect children, it is unlawful to employ a child who is under 13 years old. Children between 13 and 16 years old can only be employed to do light work, which is, that which will not harm the child’s health or development or prejudice the child’s attendance at school or participation in approved vocational training.
When it comes to termination, there must be a valid reason for the termination. The reason may be based on the performance or conduct of the employee or the operational requirements of the employer and the burden of proving that the reason for termination is valid lies with the employer.
The termination procedure prescribed in the Employment Act must be followed – the reasons for the possible termination should be clearly explained and a disciplinary hearing should be accorded where the employee can make representations on the allegations. The termination notice, for someone paid monthly, should not be less than 1 month.
In cases of redundancy, the prescribed procedure must be followed and severance, of not less than 15 days’ pay for each year worked, must be paid.
The Employment & Labour Relations Court may award up to 12 months’ salary as compensation for unlawful termination. An unlawful termination is one that is done in breach of the provisions of the Employment Act (as outlined above).
Domestic workers have the right to form and join trade unions such as KUDHEIHA (The Kenya Union of Domestic, Hotel, Educational Institutions, Hospitals, and Allied Workers).
The ILO Domestic Workers Convention, 2011 (No. 189) was passed with the aim of promoting the elimination of discrimination in respect of employment and occupation and the effective protection of domestic workers against all forms of abuse, harassment and violence. Kenya is yet to ratify the Convention.
The lawyer’s advice to Malina – settle the matter amicably because the law is on Sophie’s side.
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