Domestic workers have won a key battle for better employment terms after the court affirmed the validity of verbal contracts and imposed heavy penalties on an employer for breach of the same.
The historic judgment by the Industrial Court has left millions of households exposed to legal challenge and effectively puts domestic workers under the Employment Act. It also sends a warning to employers that they can no longer hire and dismiss domestic workers at will.
The judgment, which was delivered on December 19, 2012 – but got buried in the rubble of electoral politics – effectively leaves every household with a domestic worker liable to prosecution for breach of the Employment Act with or without a written contract.
Justice Monica Wanjiru Mbaru awarded Robai Musinzi, a house help, a total of Sh175, 533 for wrongful dismissal by her employer, Safdar Mohamed Khan, despite the fact that there was no written agreement to support the claim.
Mr Khan had hired Mrs Musinzi to work at his Lavington home in Nairobi through a verbal agreement promising to pay her Sh11, 000 per month. A disagreement between the two led Mr Khan to summarily dismiss the domestic worker after 50 months of service, sparking a year-long legal battle that ended with the court granting all Mrs Musinzi’s prayers and handing domestic workers a resounding victory against their employers.
“It is now settled in law under the Employment Act that a verbal contract is a contract that can confer rights and can be enforced,” Justice Mbaru said.
Mr Khan was ordered to pay Mrs Musinzi one month salary in lieu of a dismissal notice (Sh11, 000), house allowance at 15 per cent of her monthly pay for the 50 months of service (totalling Sh72,500) and Sh44,000 in accrued leave.
Mrs Musinzi also walked away with a severance pay of Sh22,000, two-month’s salary (Sh22,000) in compensation for unfair termination and Sh4,033 pay for 11 days worked in October 2011 before her services were discontinued adding up to a total of Sh175,533.
“This court notes that many employers fail to issue their employees with a contract of service and this acts to their detriment as non-issuance of this document leaves the court to interpret the relationship between the parties which could have been well outlined by the mutual agreement of the parties,” the judge said.
The judgment not only turns the spotlight on the official minimum wage that the government announces each Labour Day but also sends a warning to the millions of employers currently enjoying the services of domestic workers on verbal contracts.
Human rights lawyers said the judgment establishes strong legal principles that protect the rights of those employed in low-cadre jobs, including those who are likely to seek redress in magistrates’ courts.
“Precedence has been set binding all lower courts to abide by it,” said Ms Carol Mburugu, a lawyer at the Kituo Cha Sheria — a non-government legal aid agency.
A schedule of the basic minimum consolidated wages that the Ministry of Labour published in June last year sets the minimum wage for Nairobi-based house helps at Sh7,586 per month with compulsory weekly 48-hour offs and overtime compensation.
Failure to grant the break leaves the employer with the punitive option of paying the house help overtime at the rate of Sh365 per day or an additional Sh3,000 a month.
Similarly, the minimum pay for a night watchman working in Nairobi stands at Sh8, 463, a machine attendant Sh8,598, petrol attendant Sh9,815, a driver of medium vehicle/tailor Sh12,877 and heavy commercial vehicle driver Sh17,118.
In the agricultural sector, unskilled labour are entitled to a minimum wage of Sh3,765, a foreman Sh6,792 while a combined harvester driver’s pay is set at Sh5,517. Any employer found in breach of the rules is liable to a jail term of three months or a fine of Sh50,000 or both, according to the regulations.
The regulations are in line with the stringent International Labour Organisation (ILO) proposals aimed at improving the working conditions for informal sector workers.
Before her appointment to head the Industrial Court, Justice Mbaru worked as a human rights lawyer with various organisations, including the International Gay and Lesbian Human Rights Commission.
Labour officials have cautiously welcomed the decision saying while it now binds all parties to similar agreements, the elevation of the court to a High Court status has pushed access to it beyond the reach of ordinary workers.
“The elevated court will serve the workers right as long as the law is followed to the letter,” said Albert Njeru, the secretary general of the Kenya Union of Domestic, Hotel, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA).
“But being a High Court, only workers who can afford the filing fee of Sh5,000 are able to access its services yet the Industrial Court was originally conceived to be a poor man’s court.”
The judgement is seen as potentially capable of roiling the labour market as the country awaits new labour policy pronouncements from the Jubilee government, which marks its first Labour Day in power on Wednesday.
Elevation of the Industrial Court to the High Court status is expected to expose the labour market to major shake-ups as workers, employers and government use it to affirm their rights.
“Unlike in the past, the Industrial Court can now listen to high-profile cases and deliver rulings and judgments that are not only binding on parties but also set precedents,” Edigah Kavulavu, a lawyer with the International Commission of Jurists told the Business Daily.