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Microsoft Word - Filme der domesticWorkers1.docA 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.

demand

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. 1 month’s notice pay;
  2. The equivalent monetary payment in respect of Sophie’s accrued annual leave;
  3. Overtime for the five months Sophie worked;
  4. Kshs. 10,000/= in respect of her salary underpayment;
  5. Service pay; and
  6. 12 months’ salary being damages for unfair termination.

 

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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: –

  1. Annual leave must not be less than 21 days;
  2. Sick leave must not be less than 7 days on full pay and 7 days on half pay;
  3. Maternity leave must not be less than 90 days;
  4. Paternity leave must not be less than 2 calendar weeks;
  5. Not less than 1 day of rest in every seven-day period;
  6. Overtime;
  7. 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.;
  8. 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.

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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.

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. Advocates. She has practiced employment law for 10 years. She is a repository junkie and a lover of editing.

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Comments

  1. Eva says:

    Hi Ann,

    does this apply where you terminate a domestic worker’s employment after she has only served for a month or two?

    1. Anne Babu says:

      Hi Eva, the treatment accorded to a domestic worker should not be different from the treatment given to other employees and therefore, strictly speaking, it does apply, though the practicability is another thing, especially here in Kenya where domestic workers, in most cases, do not have any written contract, let alone the employer having any written records of wrong doing or poor performance.
      It’s for this reason (that is, no documentation) that most employers are forced to settle out of court whenever claims are brought by domestic workers.

  2. Silas owiti says:

    hi,am owiti a private guard, my employer don’t pay my nhif,nssf and on my leave and off I have to cover for gardener for the same period and vise Verser. at the end of year I work for 360days. I want to resigne. will I get liable pay or what should I do?plz advice, am in Nairobi.

    1. Anne Babu says:

      The last part of your question is not clear. As regards the issue of not paying the NHIF etc, you have the right to report the issue to the authorities, that is NHIF, NSSF etc so that they can take it up with him.

  3. calvin vakil says:

    I am a househelp but misstreated where may i go to report plz

    1. Anne Babu says:

      Report to a labour officer nearest to you – they can be found, for example, at the Ministry of Labour offices in NSSF Building and in Industrial area.

  4. Josephine says:

    Had Ann,I was unfairly dismissed.my term of contract states that I was on probation for three months and I have since worked for the organisation for 2 years.what is the way forward?how are they supposed to pay me?because I was given no notice

    1. Anne Babu says:

      They should have a valid reason for terminating you – relating to your performance or misconduct or their requirements and they should give you a hearing. The payment should include salary up to your last day as an employee (includes the notice period), pay for any leave that you have earned and not taken and service pay which is 15 days’ pay for each year worked.

      1. grace says:

        is service pay applicable if the employer is paying the NSSF. because as the employment act 2007 it states that service pay is not applicable where the employer pays NSSF as per section 35 (6)( d)

        1. Anne Babu says:

          Some judges of the Industrial Court have held that service pay does not apply if NSSF is paid. My opinion is that service pay should be paid unless the employee is a member of both NSSF and a pension scheme.

  5. Moh says:

    Hi Ann,Have worked for my boss for four good years as a house help and had not signed any contract with her.I used to go to my village once a year(December for two weeks).Last year when i went to my village we agreed that am supposed to report to work on 2nd Jan 2017, but on 31st December 2016 i received a message from her appreciating me for the work that i had done for her and her kids then she told me that she doesn’t need my services anymore and she will tell me when to collect my stuff.She just terminated my job unfairly without any reason.I tried to ask her why she had to terminate my job but she never told me.What should i do?

    1. Anne Babu says:

      That manner of termination was unfair. You should report the matter to a labour officer who will help you pursue the matter.

  6. Sham says:

    Hi Ann,
    My help refused to register with NHIF. I have also read on the NHIF website that for the informal sector it is not a must to register with NHIF. According to your article above it is a must for her to have it. Kindly enlighten me on this issue because i really do not want to be found on the wrong side of the law. Thanks.

    1. Anne Babu says:

      Registration is mandatory as long as they earn above Kshs. 1,000/- per month. This article sheds greater light on the subject.

  7. Louise says:

    Hi Anne, if a part-time domestic worker has handed in her resignation more than a month before going on maternity leave, is she entitled to any maternity benefits? Her resignation date is 3 months away and one week before giving birth. Also, can the employer challenge the resignation date which is more than the agreed one month notice? If challenged and resignation is brought forward, is a severance due to the worker? Thanks

    1. Anne Babu says:

      She wants to leave before proceeding on leave? Then she is only entitled to her pay up to the last day worked. You can terminate the contract before the last day – how you go about it depends on the nature of part time arrangement that you have with her.

  8. Navin sohanpal Sohanpal says:

    Dear Anne, What are the circumstances around tenants employing domestic help/maid to work in the house wash their clothes, clean all house, cut foods and help lady of the house cook and feed the children, and then not give the maid/domestic help any toilet facilities and demand them from the landlord? Is this right? what doe s the law have to say about that and who should provide toilet and bathing facilities to the night guard? Many thanks and God bless. you.

    1. Anne Babu says:

      It is the responsibility of the employer to provide these facilities. This falls under the Occupational Safety and Health Act.

  9. Mercy says:

    Hi Ann, one and half month ago I hired a househelp and we agreed on a salary of ksh 11000 then ksh 13000 in May 2017. To my utter shock she left on Sunday without notice then I was today served with a letter from labour county offices demanding that I pay a ksh13000, leu of notices and other benefits. This is clear conmanship. How do I go about it, no written employment contract.

    Mercy

    1. Anne Babu says:

      Write to the labour officer stating clearly that she deserted duty. When the letter is delivered, make sure you get a stamped copy for your records then wait for further communication from them. Since you don’t have any written contract, it will be your word against hers.

  10. nyawira says:

    Hi Mercy my housegal gave me a few days notice so naturally i got a replacement.She collected her things and left.Being it was mid month i didnt have her money for the 20 days worked so i promised to give her end month.Following day i got a call from the labor offices that i hadnt paid her for 2 months.She also exaggerated the salaryfrom 4500 to 6000.
    Whats the legal position?

    1. Anne Babu says:

      It’s best to put your position in a letter addressed to the labour officer – attach evidence of the salary payments if you have. If you have no documentation, it’s her word against yours and the court will most likely take her side because it’s the employer’s responsibility to keep records. If you have no documentation consider paying her something in full and final settlement.

      1. Radhakrishnan says:

        Dear Ann,

        I read on business daily 6.7.2015 release , that the house maids should be given two days off in a week, that is 48 hours of work in a week. 5 days a week. but I have not seen anywhere on the law. the house maid is working normal as other workers for 5 full days and saturday half day. in this case do we need to pay for 1 day every week while we settle the final dues ?. can you please clarify.

        1. Anne Babu says:

          To my knowledge, the house help is entitled to one day of rest every 7 days like every other worker and that day should be paid for.

  11. Joseph says:

    A house help agree to be paid 5k a month. She is being connected to her employer by a ‘bureau’ lady who demands 2k for fare of the girl and definitely she has her share in that. The cash is sent to the bureau lady.
    The girl arrives, no contract or official document. After 16 days we she leaves without notice. She calls later asking for full payment of the 16days and issues threats.
    Full payment means 2k fare is lost.
    No notice means alot of inconvenience to the employer.
    PLEASE advise on this scenerio.IT will help in the present case and in the future. I hear there are cartels btw these bureaus and the girls. Because that way if we pay the girl, it will be full month payment for half month worked. The she goes to another place and cycle is repeated.

    1. Anne Babu says:

      The first point to note is that her salary is less than the minimum wage. For that, she can report you to the labour officer. Thankfully she did not work for a full month and her manner of exit was unlawful. She should have given you a months’ notice or a month’s pay in lieu since this was not done, she is not entitled to any pay. To protect yourself, write to her and the bureau outlining what transpired so that you at least have it on record – this can even be on SMS or email.

  12. Joanne says:

    Hello Ann;

    I had this housekeeper for 3yrs until recently we found out she had been accessing our master bedroom to wear my clothes, jewellery and makeup. We found photos on `Facebook and confronted her. She was apologetic but started having a bad attitude towards the work and few days later she absconded duty without communication. She was a day scholar so Monday she reported but did not do any house work – I only found her waiting for me at 3pm like someone who wanted to leave. After a short discussion she said ‘she’d rather leave” – I did not object . I paid her salary for days worked.

    Last week I received a demand letter from a lawyer claiming service pay, overtime , leave, house allowance and unfair termination. Fortunately I kept the records for the leave days she had taken all through her tenure and we owe her none. I also have the record of what we discussed and agreed on during the final interview. She also got 2 days off per week. We paid her 25K which was all inclusive.

    What are the best steps we can take to avoid this conmanship type of approach? She did not give notice , no reason for deserting/ refusal to work, she failed to report on the agreed 8.30am instead she would even be as late as noon.

    1. Anne Babu says:

      There is an increase in the number of domestic workers who are reporting their former employers to a labour officer or seeking the assistance of a lawyer following the termination of employment. It is therefore important to document the entire relationship, particularly the termination like is done for other employees, otherwise, it’s your word against hers. If you chose to ignore the letter, you may be faced with court action. On the other hand, the matter might go away. The ultimate choice is yours. Service pay is an entitlement if the termination was by notice and if the employee was not a member of NSSF. If she was a day scholar then it’s unlikely that she worked overtime. If you documented the fact that the salary was all inclusive then she is not entitled to house allowance. She is only entitled to damages for unfair termination if you are not able to establish the circumstances of her departure because that burden lies on the employer.

      1. Joanne says:

        Thank you Ann. We will respond to the letter and also send a statement to the labour office and wait.

        We had no intention of terminating her – she walked out of a discussion when I asked her why she was absent from work without permission. She expressly said – she wants to leave because she doesn’t want to be told what to do. I did not discuss further, paid her and let her go because I thought to myself it would be wrong to force someone to work for you. This walk out is what she has turned around to claim unfair termination.

        Is there a way to counter this? I have one witness who is my employee whom she called to boast to her how she has left the household helpless. She came out to tell me this a few days ago. Thank you

  13. Sue says:

    Hi Anne. Thanks for very informative article. I have truly benefitted. I have a question on calculation of service dues. Is it 15 days pay for every year worked so half a month’s salary? Do you calculate it based on specific salary earned that year? I have a worker who started working in July 2014 and salary has increased every year. How do I determine which one to use? If they got two increases in the same year, which one do I use?
    Thanks in advance.

    1. Anne Babu says:

      Use the most recent salary. Yes, it’s half a month’s salary.

  14. Jo says:

    Hi Anne
    Thank you for your useful posts. As a newcomer to Kenya I am trying to ensure I get everything right for my staff.
    I have been looking for a standard contracts for my housemaid and gardener which reflect Kenyan law (obviously I am only familiar with UK law), are there standard templates that you can point me to please?
    kind regards
    Jo

    1. Anne Babu says:

      Hi Jo, we shall be putting up some templates in the next two weeks. Look out for them!

      1. Jo says:

        Thank you Anne is there any news on these please?

        I have had to draft my own contract as I need to get it sorted and currently have a couple of queries on clauses 36 of the Employment Act?
        Firstly – she claims she should be entitled to 3 months termination notice – she is paid monthly – so I have pointed her to clause 36 (1c.) which clearly states 28 days – am I correct please?

        Secondly – If my housemaid is registering as self-employed for NSSF and NHIF and we are paying her an amount to cover her monthly contributions to these – would she also be entitled to Service pay if her contract was terminated under subsection 35 (1c.) or not?
        If she IS entitled to service pay how is this calculated please?
        many thanks
        Jo

        1. Anne Babu says:

          Dear Jo,
          1. Yes, you are correct, she is entitled to one months’ notice.
          2. No, she will not be entitled to service pay if she is a member of NSSF.

  15. Michael N. Ngure says:

    can a diplomatic mission employee join kidheiha, will kudheiha act to defence of the worker. let me know how..

    1. Anne Babu says:

      Apologies for the delayed response. Yes, they can join but just how much KUDHEHIA can do is questionable because the mission cannot be taken to court even if there’s non-compliance.

  16. Dee says:

    Hi Anne,
    My question is slightly unrelated to the article. Could I get your opinion on this please.
    My former boss is withholding my 3months pay so I contacted a lawyer to help me out.
    The demand letter was delivered by my lawyer’s rider. (is this okay?)
    The receptionist, I later was told, knew some of the content of the letter. (can anyone other than the recipient open the demand letter?)
    The letter has not yet reached my boss because she has not been showing up to work. The last attempt to deliver the letter was today. The receptionist told the rider that my boss was in her office. She took the letter went to the boss’ office then came back and told the rider that she was not in. So the rider took the letter back to the lawyer. (Ideally, what should happen now? I am confused.)

    1. Anne Babu says:

      Delivery using a rider is customary.
      A letter can be opened by anyone unless it’s marked “private & confidential”.
      Send the letter by registered post or a courier. As long as it’s signed for, it’s deemed delivered.

  17. David says:

    Hi Anne,

    If you recall a domestic worker from His/her leave, is there any compensation due? Should the extra days worked upon his/her early return from leave be paid for on a daily basis if you intend to compensate the said extra days in the course of a calendar year?

    Regards,

    David

    1. Anne Babu says:

      Recall from leave happens often. No compensation is due as long as she will take the leave later on.

  18. TOTO18 says:

    Hi Ann,
    I have a worker that works 3 days a week. She has worked for us for 8 months, found other work for the 4 months we were away, and resumed with us again when we returned. Would this be counted as a full year contract, or 8 months?
    I ask because she is requesting a full month off for annual leave. However, technically, has this been a full year, if we left (found her another employer) and returned?
    If it is only counted as 8 months of part time work (3 days/week), how much leave are we required to give her?
    I can’t seem to find the law for part-time workers, and anything close to this situation. Thank you for your help!

    1. Anne Babu says:

      21 days annual leave is an entitlement for those who have worked continuously for 12 months which is not the case here. There is no express law in Kenya on part-time workers. My thinking is that they are not entitled to leave because they are not working continuously. One can also argue that the days that they are not working are more than enough to cover leave. At best, one can compute the total full months worked in the year and prorate but I wouldn’t want to set such a precedence because the entitlement is doubtful.

  19. Paul kithome says:

    Hi Ann,Have been working as a driver to pick up a child from school. We had agreed with my employer a salary ksh15000 per month and additional payment of ksh 500 every time incase he sends me to do other things during morning hours. Worked for one month then the second month when I asked for extra payment he told me to consider that that even during closing time of school he will still be paying so I don’t need to ask for extra payments. I agreed, its been now more than seven months but recently he told me he can’t pay me when school are closed against our agreement. What I do, should I report him?

    1. Anne Babu says:

      If you do not have a written agreement, it will be very hard for you to prove that he agreed to pay you during the holidays.

    2. Paul kithome says:

      Does that mean I can’t report the case to labour office since I don’t have a written agreement?

      1. Anne Babu says:

        You can report but you will have to find a way of proving the terms of the agreement.

  20. deary says:

    am not biased but why are somalis in kenya misyreating maids like here in nakuru naka one was beating a her maid i am really worried a bout her fate coz i waoted to see her coming out to no avail .how can i open a firm to protect house helps.

    1. Anne Babu says:

      Ask the house help to report the matter to the nearest labour officer.