By Purity Ngigi – Sundays

In a recent court decision in Kisumu, a judge ruled that the termination of a domestic worker otherwise known as a house manager or house help was unfair since the employer did not issue the employee with a valid reason for termination and did not follow the stipulated procedure while terminating her services. The claimant told the court that her employment was terminated after she asked for a salary increment.

There have been a number of court cases in the recent past that have upheld this position. Employers have found themselves having to pay damages for unfair termination. The courts may award damages of up to 12 months salary as compensation for unfair termination. The compensation may go beyond the 12 months salary in the event that a claim of discrimination is successful against an employer.

To avoid being caught on the wrong side of the law, employers of domestic workers should consider the following before terminating the services of the domestic worker:

1. A domestic worker is considered an employee under the law and as such the employer has an obligation to issue the employee with a contract after a month of service.
2. Contrary to public opinion, a domestic worker is not a casual labourer. The law provides that a Casual worker is one who is engaged for one day at a time and is paid at the end of that day. The assumption is that casual labourers services are not required for a long period of time so that the contract expires at the end of the day. Where a casual worker is engaged (whether continuously or not) for a period of more than one month, then they are entitled to a one-month termination notice in the event of termination. Where the employment extends for more than two months, the worker’s employment is converted to a short/full-term employment, and the worker is entitled to procedural termination and similar terms and conditions of service as a full-time/short term employee.
3. Procedural termination includes giving a valid reason for termination and following the procedure of termination which includes giving a notice to show cause, providing a hearing to the employee to make his/her representations, issuing at least one month’s notice or payment in-lieu-of notice, and upon conclusion of the notice period issuing a termination letter and certificate of service.
4. As part of the termination, the employee is entitled to their outstanding salary for the days worked, payment of outstanding leave days if any, and service pay where the employer was not remitting NHIF or NSSF on behalf of the employee during the employment period. Service pay is paid at the rate of 15 days salary for every year of service.