Last week a land mark ruling was made in a case where a domestic worker, Moreen Muhani, won a case against her employer for unfair termination. According to her submissions, she was fired without any good reason. During the trial it came to notice that she was earning below the minimum wage at Sh3,000 per month.
In the ruling the court awarded her about Sh270,000 arguing that she was paid below the minimum wage and her termination was unfair. The court further awarded her leave days and overtime for public holidays. She also got one month salary in lieu of notice.
This case sets a precedence in upholding the rights of domestic workers which are often abused. I am happy that this ruling has set the record straight. I believe following this, some may restructure the employer-employee relationship in so far as domestic workers are concerned.
In as much as this ruling upholds the rights of employees, it is important to note that employers too have rights which are safeguarded under the Employment Act. The law safeguards an employer against toxic employees. Most domestic workers frequently abuse their employers’ rights in what is deemed to be acceptable practice. Take the example where a domestic worker unilaterally gives themselves "off days". Under the employment law this is known as absenteeism and one can be terminated summarily without pay for absenteeism.
Also consider an example where a domestic worker performs below expectations, or is very rude and disrespectful. Such a worker can be summarily dismissed for insubordination. Other domestic workers resign without notice and expect payment for the days worked. Under the employment laws, they are not entitled to any payment and in fact owe the employer one month salary.
I have a few suggestions following the landmark ruling that may help manage and protect the rights of both parties.
It is important to negotiate the terms clearly from the onset. The terms should not just include salary expectations but also a detailed job description. If possible a simple performance benchmark should be set such that if the domestic worker's performance falls below par, then action can be taken.
As an employer, it is important to communicate their rights to them and as well as yours. Help them to understand from the law incidences of summarily dismissal or incidences when you may take disciplinary measures for example absenteeism, disrespect and so on. Give them the clear procedure of termination of the contract. The proper way is via one month notice. Have in place a proper dispute resolution mechanism which works best if the domestic worker is from an independent recruitment bureau. The bureau can be involved in dispute resolution.
Have a contract if possible. In more sophisticated domestic environments such as homes of celebrities, the contracts are more detailed and most include confidentiality clauses. There have been many actions against domestic workers by celebrities especially in breach of confidentiality clause. In one such case, rapper Kanye West threatened a lawsuit against a former bodyguard for breach of a confidentiality clause.