The Employment and Labour Relations Court has ordered an employer to pay Sh569,717.48 to his former domestic worker for underpayment, lack of house allowance, denial of annual leave and failure to remit the National Social Security Fund fee.
This is after finding that she was unfairly dismissed.
In a judgment delivered by Justice Jacob Gakeri, the court upheld the trial court’s finding that Rahim Ibrahim Ramzan unfairly terminated the employment of his house servant, Gladys Misango, who had worked for his household since 2018.
The court heard that Misango earned Sh4,000 per month for five years, an amount far below the statutory minimum wage, and was never granted annual leave or paid house allowance.
She also told the court that no NSSF deductions were ever made on her behalf.
Although Ramzan argued on appeal that Misango was a casual worker who only reported “once in a while,” the judge dismissed the claim.
He said that all the employer’s own witnesses admitted she worked continuously as a house servant for years.
“…Under the law, any employer paying below the minimum wage commits an offence”, said the court.
Justice Gakeri further ruled that Ramzan failed to prove allegations that the worker absconded duty.
Evidence showed that she had fallen ill in March 2024 and was never allowed to return to work thereafter, despite no disciplinary process or follow-up from the employer.
” Even if she had absconded, she is by law entitled to a fair disciplinary process as set out in Section 41 of the Employment Act, 2007,” ruled the court.
“No evidence was availed to the court to support there having been a disciplinary process or notice issued prior to the termination. It is the duty of the respondent to show this court it did accord the claimant a fair hearing prior to her termination.”
While the judge upheld the findings on underpayment, leave, and house allowance, he set aside the gratuity award issued by the lower court.
Judge Gakeri said gratuity is only payable where expressly provided for in a contract.
He also reduced the compensation for unfair termination to two months salary.
“Considering that the respondent served for 6 years, which is not long, had no recorded cases of misconduct, but did not express her wish to remain in the employment of the appellant or appeal the termination of employment, and contributed to the termination by failure to keep the employer informed. A simple phone call would have been sufficient, the equivalent of two (2) month’s salary was fair Kshs.34,963.80,” said Gakeri.
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