Matilda is a career woman working in a professional office in Westlands, Nairobi. For the last five years she had employed Rose as a house keeper, whose duty was among others house chores, taking care of the children and cooking. Rose’s day starts at 05.00 a.m. with washing cars and making breakfast for Baba Kazee before he leaves for work at 06.30 a.m. Thereafter, she prepares the children to go to school and thereafter attends to house chores. When children get back from school at 4 p.m., she washes them, makes them an afternoon snack, cooks dinner and serves them by 7.00 p.m. She thereafter cleans up and eventually retires to sleep at about 09.00 p.m.

Rose earns a monthly salary of Kshs. 10,000. She lives in the homestead and eats what she cooks for the rest of the family. Rose goes to church early on Sunday mornings and doesn’t come back until late in the afternoon. Whenever Rose is unwell Matilda ensured that she foots the bills. Rose is not under any medical scheme including NHIF. She agreed with Matilda that she does not want to pay NSSF or any other deductions from her salary. The terms of employment are all verbal and it has worked out well for both of them.

Rose has been a fantastic employee until the last three months when Matilda noticed that Rose’s attitude had drastically changed. She got very moody, insolent and harsh to the children. She had also become lazy. She slept till late in the morning and on a few occasions, Baba Kazee went to work without breakfast and the house stayed unkept. Matilda had on several occasions politely discussed Rose’s change in behaviour with her without any improvement. She was very relieved that Rose agreed to leave employment without any drama. Matilda paid Rose her salary and she left.

Last week, Matilda received a letter from Kenya Union of Domestic Hotels Educational Institutions Hospitals & Allied Workers (KUDHEIHA). Rose’s claims among others were:

1. She was not given or paid for notice before termination.
2. Salary underpayment.
3. She had not taken leave for the last five years.
4. She was not paid overtime. She was working from 5.00 a.m. to 9.00 p.m.
5. Service pay for 5 years.
6. Damages for unfair termination.
7. Unremitted NSSF and NHIF dues.

Who is a domestic worker?

According to Order 2 of Regulation of Wages (Domestic Servants Wages Council Establishment) Order, a domestic servant refers to any person employed wholly in any private household in any of the following capacities, namely cook, house servant (including bedroom and kitchen servant), waiter, butler, children’s nurse, chauffeur, bar attendant, groom, gardener, or watchman. Rose was therefore a domestic worker in Matilda’s household.

Rights of an employee

According to Section 2 of both the Employment Act and Labour Relations Act, an employee is a person employed for wages or a salary and includes an apprentice and indentured learner. Domestic workers are also employees within the meaning of the law.

According to, Article 41 (2) of the Constitution of Kenya (CoK) an employee is entitled to:

1. Fair remuneration;
2. To reasonable working conditions; and
3. To form, join or participate in the activities and programs of a trade union.

The Employment Act and other laws, expound on the above constitutional preserves for an employee as follows:

     i) Basic minimum conditions of employment

Under Section 26 of the Employment Act, an employee is entitled to basic minimum terms and conditions of employment including fair remuneration, humane working conditions and basic terms regulated by any collective bargaining agreement.

The Regulation of Wages (General) (Amendment) Order of 2018, provides for the minimum remuneration of domestic workers based on location. Domestic workers in the cities of Nairobi, Kisumu and Mombasa ought to be paid a minimum of Kshs. 13,572.90 per month. Those in former municipalities or town councils of Mavoko, Ruiru and Limuru ought to be paid a minimum of Kshs. 12, 522.70, while those in all other areas ought to be paid a minimum of Kshs. 7,240.95 per month excluding house allowance. (Valid as at September 2020)

Employers, be aware that any agreement to pay a domestic worker below the minimum prescribed wage is not protected by the law. The Courts have been categorical that the minimum wage must be adhered to. In the case of Robai Musinzi v Sadfar Mohamed Khan (2012), the Court ruled that domestic workers are entitled to the minimum wage provided in the Regulation of Wages Order.

     ii) Right to leave

Under Section 27 to 30 of the Employment Act, Employees are entitled to:

1. One rest day in every seven day period of service;
2. At least twenty-one working days of annual leave with full pay;
3. Three months maternity leave or two weeks paternity leave with full pay; and
4. Sick leave of not less than seven days on full pay and seven days on half pay.

     iii) Working hours

The prescribed maximum working hours for an employee is fifty-two hours every week. Working hours in excess of the fifty-two hours is considered overtime. Order 6 of the Regulations of Wages (General) Order, overtime is payable in addition to the salary at the rate of ¹/₂₂₅^th of the monthly salary per hour.

Working time evaluation for domestic workers is difficult given the nature of their work. Their working hours depend on the Employers schedule. There is also no clear measure of the actual time they work and the intermittent breaks they take.

Section 27 of the Employment Act, gives leeway to the Employer to regulate the working hours in accordance with the law. This means that parties can agree how working hours are managed and whether there is payment of overtime for as long it is within the law. For example, the Employer and the Employee can agree on a salary that is all inclusive of overtime or other contributions (for as long as the salary is above the prescribed minimum).

In absence of an employment agreement the onus of proof of any term of employment is on the Employer as the law requires that the Employer must give an employment agreement to any person in employment for more than three months.

     iv) Medical attention

Under Section 34 of the Employment Act, the Employer is required to provide sufficient medication to an employee during illness. Medication is unpredictable and sometimes can be very expensive. This requirement is satisfied if the Employee is under NHIF cover or other medical insurance scheme.

     v) Right to housing

Section 31 of the Employment Act, requires that an Employer should provide reasonable housing or alternatively pay house allowance. Section 31 (2), provides that housing allowance shall not apply if the contract of service provides for a consolidated pay that is inclusive of house allowance.

Where housing is not provided or where there is no employment contract, the Courts interpretation has been that the salary provided is basic salary and house allowance at the rate of 15% of basic pay should be paid in addition. In the case Caroline Wanjiru Luzze v Nestle Equatorial African Region Limited, (2016), the Court ruled that housing allowance should be added to the basic pay if it is not part of a consolidated salary or not being provided by the employer.

     vi) Provision of water and food

An employer is required to provide water to the employees at the place of employment. Provision of drinking water suffices unless the Employer is providing accommodation in which case the Employer shall provide water within a reasonable distance of the accommodation.

Provision of food is not a mandatory requirement unless it is an agreed term of contract.

     vii) Termination notice

Section 35 of the Employment Act, provides that an Employee on a monthly salary should be given termination notice of at least 28 days. Alternatively, the Employer is required to pay salary in lieu of notice. Similarly, when the Employee is resigning they are required to give equivalent notice.

     viii)  NSSF contributions.

Section 20 of National Social Security Fund (NSSF) Act, provides that the Employer is required to pay the prescribed amount and contribute an equivalent amount to the Fund. It is the Employers obligation to remit both the Employers and Employees contributions to the fund.

Responsibilities of an Employee

1. To obey the terms and conditions under the employment contract;
2. Not to absent from duty without reasonable cause;
3. To perform their duties diligently and responsibly;
4. Not to use any intoxicants or drugs during working hours;
5. Not to use abusive language on the employer or a person in authority;
6. To obey lawful instruction by the employer; and
7. Not to commit any offences against the employer.

A review of the case scenario

1. Was Matilda obliged to respond to the claim by the KUDHEIHA? – The Employer is obliged to respond and report to the Labour officer if summoned.
2. Was Rose entitled to termination notice or payment in lieu? – Yes. Unless Rose resigned on her own volition (in writing).
3. Was Matilda underpaying Rose? – Yes. The minimum prescribed for Nairobi is Kshs. 13,572.90. Rose is entitled to the underpayment for each year as prescribed in the Regulation of Wages (General) (Amendment) Order for each year.
4. How many days leave is Rose entitled to? – 21 days for every completed year of service and pro rata 1.75 days for every month.
5. Is Rose entitled to overtime? – Yes for 7hrs and 20 minutes every day. She was required to work for only 8.6 hours every day.
6. Is Rose entitled to service pay? – Yes as per Section 35(6) of the Employment Act, at the rate of 15 days for each completed year of service (unless she was on NSSF or any other pension scheme).
7. Is Rose entitled to the unremitted NSSF and NHIF dues? – No. However, nothing prohibits NSSF and NHIF to claim the remittances being a statutory obligation of the Employer.
8. Rose and Matilda agreed that Roses salary should not have NSSF and NHIF or other deductions. Was this valid agreement? – No. Parties are prohibited to contract for an illegal purpose. NSSF and NHIF can at any time call for the deductions from Matilda.
9. Is Rose entitled to damages for unfair termination? – Only if Rose can prove that there was an invalid reason for termination or that the procedure for termination was not followed.

Conclusion

Domestic workers are a special category of employees and many of them are semi- literate. Kenyan jurisprudence through the Employment and Labour Relations Court has adopted a very lenient approach to the employee given their educational exposure and greater responsibility is placed upon the Employers. The burden of proof of the terms of engagement rests with the Employer and the courts approach has been unless under written contract, the court will not make an unfavourable interpretation of any term of contract against the Employee. The Court in the case of Stella Mukoko Amutabi v Saijal Shikotra (2014), ruled that an Employer has the duty to inform the employee whenever there is a change in the terms of the contract preferably in writing, and in a language the Employee understands.

To avoid unnecessary and complicated disputes with your domestic workers it is easier and safer to draw up an employment agreement with clear terms and conditions of engagement.

SOURCES

1. Constitution of Kenya, 2010
2. Employment Act, No. 11 of 2007
3. Labour Relations Act, 14 of 2007
4. National Social Security Fund (NSSF) Act, 2013
5. Regulation of Wages (General) Order
6. Regulation of Wages (General) (Amendment) Order, 2018
7. Regulation of Wages (Domestic Servants Wages Council Establishment) Order, 2018
8. Robai Musinzi v Sadfar Mohamed Khan, 2012 eKLR
9. Caroline Wanjiru Luzze v Nestle Equatorial African Region Limited, 2016 eKLR
10. Stella Mukoko Amutabi v Saijal Shikotra, 2014 eKLR