Felister Nduku Nzaku v Joyce Wairimu Gitau [2016] KEELRC 25 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO. 1126 OF 2016

FELISTER NDUKU NZAKU …...…..…. CLAIMANT

VERSUS

JOYCE WAIRIMU GITAU ……..….. RESPONDENT

JUDGEMENT

1. The Memorandum of Claim was filed on 10th June, 2016. The Respondent was served with summons but has not entered appearance or filed a defence despite confirmation of such service vide Affidavit of Service filed by Charles Mutua Mwanzi affirming that on 15th june, 2016 the Respondent was served at her residence in Kambiria within Dagoretti area in Nairobi. The matter came for directions on 3rd November, 2016 where the Court allocated a hearing date and further directed fresh service upon the Respondent by the Court process Server, which was done on 3rd November, 2016 and an Affidavit of Service Filed to this effect.

2. The court, satisfied that the Respondent is properly served but opted not to attend at the hearing, heard the Claimant in her evidence.

3. The claim is that, on 4th January, 1999 the Claimant was employed by the Respondent as a House help through an oral contract. She was paced at the residential home of the Respondent and her last salary was kshs.4, 000. 00 per month. That the Respondent often delayed the payment of the due salary and sometimes paid less than was due and all was paid in cash with no statement. At the time of termination of employment, there were salary arrears of Kshs.6, 284. 00.

4. That the Respondent failed and refused to give the Claimant her annual leave, underpaid the Claimant and never gave her an off day or allowed her to enjoy her Sunday day off. That the Respondent violated section 35, 28 and 27 of the Employment Act.

5. On 21st July, 2015 the Respondent informed the Claimant that her services were no longer required after she asked for her salary arrears which had accumulated to kshs.6, 284. 00. The Respondent sent her out of her residence and consequently summarily dismissed her without notice, reasons or hearing and without payment of her terminal dues. The Claimant had served diligently for over 16 years without any complaints against her.

6. The Claimant is seeking;

a. Salary arrears Kshs.6,284. 00;

b. Notice pay kshs.4,000. 00;

c. Annual leave pay for 16 years at kshs.44,800. 00;

d. Compensation for unfair termination at kshs.48,000. 00;

e. Underpayments –

f. 1stMay 2006 to 1stMay 2010 Kshs.57,360. 00;

g. 1stMay 2010 to 1stMay 2011 Kshs.32,916. 00;

h. 1stMay 2011 to 1stMay 2012 Kshs.3,576. 00;

i. 1stMay 2012 to 1stMay 2013 Kshs.54,948. 00;

j. 1stMay 2013 to 1stMay 2015 Kshs.138,742. 80; and

k. 1stMay 2015 to 21stJuly, 2015 Kshs.6, 618. 00. Total dues Kshs.397, 244. 00.

7. That the Claimant was unfairly terminated from her employment as no reasons were given and section 41 and 43 of the Employment Act were not adhered to. That the termination was unfair in terms of section 45 of the Employment Act and the remedies sought are due as under section 49 of the Employment Act.

8. The Claimant also testified in support of her claim. She testified that upon employment by the respondent, she served diligently at the residence in Kambiria, Satellite in Dagoretti area and despite working for over 16 years, her last salary was Kshs.4, 000. 00 per month. When she asked the Respondent for her arrears and an increase to her salary, she was sent out with nothing. She was chased away for asking for her money. She had not been paid for long periods since 2009. She would complain to her employer about her arrears and low pay but was never given feedback. On 21st July, 2015 the Respondent sent her away for asking for her dues.

9. The Claimant supported her claims as set out in the memorandum of claim.

10. The Claimant also testified that she hails from Machakos and had to go back to her village without any terminal dues upon her summary dismissal. She had served the Respondent for 16 years. She started her employment at the age of 15 years and had no chance to go to school or develop herself in any other way. That the termination was unfair as she had done no wrong other than to ask for her salary arrears that were long overdue and a pay increase as she was being underpaid.

Determination

11. The practice of an employer failing to issue and employee with a written contract of employment is a matter abhorred by fair labour practice. Without a written contract of employment, the word of the employee has to be believed as the duty to issue such a document is upon the employer. Section 7 and 8 of the Employment Act requires an employer to issue such a written contract;

7. No person shall be employed under a contract of service except in accordance with the provisions of this Act.

8. The provisions of this Act shall apply to oral and written contracts.

12. An employer is also mandated in law to keep work records and to ensure that the employee particularly are updated. Such is to enable the employee know their rights and duties at work and to ensure that the due rights are protected. Where there is a dispute the employer should submit such work records with the Court in terms of section 10(6) and (7) of the Employment Act;

6. The employer shall keep the written particulars prescribed in subsection (1) for a period of five years after the termination of employment.

7. If in any legal proceedings an employer fails to produce a written contract or the written particulars prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.

13. In this case, the respondent, though served and returns to this effect filed, has opted not to participate in the proceedings. That does not negate the claims made by the claimant.

14. The Claimant testified that she was employed by the Respondent since 1st April, 1999 and for 16 years served as a House help at a monthly pay of kshs.4, 000. 00 a month. That such a wage was delayed, was in arrears and when she asked for increment and payment of her arrears, the Respondent sent her out and thus terminated her employment.

15. The Regulation of Wages (General) Orders in which domestic workers/House Help employee fall under set the minimum wage. Under the wage payable for a house help in Nairobi City, such should be Kshs.10, 954. 70 per the Wage Orders.

16. The Claimant testified that her work was within the residence of the Respondent at kambiria, satellite in dagoretti, which is within Nairobi. As such the minimum wage payable to the Claimant following the wage guidelines applicable for 2015 as per the minister published guidelines is kshs.10, 954. 70 per month. Where the Claimant continued to receive the sum of Kshs.4, 000. 00 per months, such was in contravention of the law and contrary to fair labour practice. This is also contrary to the Regulations of Wages orders applicable for Nairobi.

17. The under payments due and terminal dues owing to the Claimant shall therefore be computed based on the allowable wage for a house help working in Nairobi at kshs.10,954. 70.

18. Termination of employment for gross misconduct, misconduct, non-performance, incapacity of for any other due cause is regulate din law. The Employment Act as section 44 regulate summary dismissal, section 43 and 47 regulate termination of employment and section 35 and 41 of the Act regulate the issuance of termination notice and a hearing before such termination. An employer cannot out of a whim terminate an employee. Such is prohibited under section 43 of the Employment Act as there must be a valid reason(s) that is genuine and justified to warrant a termination of employment.

19. Where the Claimant was simply told to go and leave the residence of the Respondent for asking for her salary arrears and pay increment, such I find to me an unfair labour practice and contrary to the mandatory provisions of the law as cited above. Where the only season for dismissal was the demand for lawful dues owing, such cannot form a justifiable ground for dismissal in a democratic society such as ours and is contrary to constitutional values set out under article 20;

The values that underlie an open and democratic society based on human dignity, equality, equity and freedom;

20. On such basis, I find the Respondent violated the provisions of section 35, 41, 43 and 45 of the Employment Act. There was no notice of termination issued to the claimant; there was no hearing; no reasons were given for the termination of employment and where such reasons related to demand for lawful salaries due, such is not a valid and justified reason to warrant termination of employment and thus, by virtue of section 45, the termination of the Claimant was unfair. Compensation is due.

21. Noting the unfair circumstances leading to the termination of the claimant, 12 months compensation is found appropriate. Based on the law payable minimum wage of Kshs.10, 954. 70, the Claimant is awarded kshs.131, 456. 40.

22. What emerged at the hearing and thus came to the attention of the court is the fact that the claimant was employed by the respondent as a child and aged 15 years. The practice of employers taking on underage children for employment as house helps is rampant but this does not make it lawful. Employment of children and persons below 28. years is specifically prohibited under section 53 of the Employment Act;

53. (1) Notwithstanding any provision of any written law, no person shall employ a child in any activity which constitutes worst form of child labour.

23. The employment of a child as a house help essentially denies such a child the right to care and protection, right to an education and the right to enjoy their childhood and more fundamentally, the right to development. Where such employment is coupled with underpayment and or non-payment of due wages, such becomes a double violation of the child’s rights and prohibited under section 56 of the Employment Act;

56. (1) No person shall employ a child who has not attained the age of thirteen years whether gainfully or otherwise in any undertaking.

(2) A child of between thirteen years of age and sixteen years of age may be employed to perform light work which is—

(a) not likely to be harmful to the child’s health or development; and

(b) not such as to prejudice the child’s attendance at school, his participation in vocational orientation or training programmes approved by Minister or his capacity to benefit from the instructions received.[Emphasis added].

24. The sanction for employing a child is found at section 64(2) of the Employment Act;

2. A person who uses a child in any activity constituting worst form of child labour commits an offence and shall on conviction be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both.

25. No defence has been offered as to why the respondent employed a child and thus denied the claimant the rights due to her and the right to development. As this is in clear violation of the law, I sanction the respondent to pay a fine of kshs.50, 000. 00 to the claimant for her to be able to engage in a trade for her own development as her formative years all went into the service of the respondent.

Remedies

26. Salary for days worked and to paid for is due as a right whatever the reason9s) for termination. This is a right that cannot be denied of an employee. The salary arrears owing to the Claimant are hereby awarded at kshs.6, 284. 00. Such dues shall be paid with interests as the Respondent as kept these from the Claimant without any justification and denied her the right to use monies rightfully earned from her labours.

27. On the finding that the termination was unfair and without any justification, under section 35 of the Employment Act, notice pay is due. The Claimant is awarded such notice pay at kshs.10, 954. 70.

28. The Claimant is seeking for payment of her annual leave due. Section 28 of the Employment Act requires an employer to give an employee 21 days of annual leave with full pay. Where the Claimant was not given such leave, such is due for the 16 years served. Such leave now due and not paid for shall be computed on the last payable minimum wage of kshs.10, 954. 70 all at kshs.175, 275. 20.

29. Underpayment of any employee who has a set wage by the government regulations is contrary to the law. Where wages are set by government order, such is to insulate an employee from the vulgarities and power forces in the labour market and to ensure that no employee is underpaid. As there is no challenge to the claim, I confirm the underpayments set out by the Claimant all awarded at Kshs.264, 160. 00 all due for the 16 years of employment.

30. Section 20 of the Employment Act requires every employer to issue an employee with an itemised statement of payment setting out what is the gross wage, the deductions and the net wage. Such is to ensure that the employee is appraised of all due wages and context of such payments;

20. (1) an employer shall give, a written statement to an employee at or before the time at which any payment of wages or salary is made to the employee.

(2) The statement specified in subsection (1) shall contain particulars of—

(a) The gross amount of the wages or salary of the employee;

(b) the amounts of any variable and subject to section 22, any statutory deductions from that gross amount and the purposes for which they are made; and

(c) Where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.

31. In this case, there was no employment contract and all wages were paid in cash and without a statement. I take it without any recor4ds submitted by the Respondent herein or issued to the Claimant upon termination, no statutory dues were remitted as required. As such, without any registration and remittance to the various statutory bodies for social security and national health, service pay is due. Section 35(5) and

(6) where there are no statutory deductions and remittances by employer, service pay is due at 15 days wage for each year worked. For the 16 years of service, the Claimant is entitled to kshs.87, 637. 90.

32. Section 51 of the Employment Act requires every employer to issue an employee a Certificate of Service with the Termination letter. As such, the Claimant should be issued with a certificate of service unconditionally.

In conclusion, judgement is hereby entered for the Claimant against the Respondent in the following terms;

a. A declaration that the Claimant was unfairly terminated from her employment with the respondent;

b. I find the respondent in violation of section 53 of the Employment Act and sectioned to pay the claimant kshs.50, 000. 00 in terms of section 64 of the Act;

c. Compensation awarded at kshs.131, 456. 40;

d. Notice pay at kshs.10,954. 70;

e. Salary arrears kshs.6,284. 00;

f. Leave days due payable at kshs.175,275. 20;

g. Underpayments all at kshs.264,160. 00;

h. Service pay at kshs.87,637. 90;

i. Certificate of Service be issued unconditionally and within 7 days from the date hereof; and

j. All costs incurred by the Claimant in filing suit herein.

Orders accordingly.

Judgement read in open court this 15th day of December, 2016.

M. MBARU JUDGE

In the presence of

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