Josphine M. Akinyi O v Farhiyo Mohamed [2013] KEELRC 613 (KLR)
The bottom line
#A Kenyan court ruled that house helps on oral contracts are fully protected by the Employment Act, and firing them verbally without a hearing is unfair.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination
Termination was procedurally unfair because the employer did not comply with section 41 of the Employment Act
The employer was required to explain the reasons to the employee in a language she understood, allow a representative, and hear explanations. The reason for termination was poor performance, engaging section 41. The Respondent gave oral notice only and failed to demonstrate compliance with the procedural requirements.
Substantive fairness of termination
Termination was also substantively unfair because the employer failed to prove valid and fair reasons
Sections 43 and 45 of the Employment Act require the employer to prove the reasons for termination and that they were valid and fair. The Respondent failed to discharge this burden, so the termination was substantively unfair in addition to being procedurally defective.
Applicability of the Employment Act to a house help on an oral contract
The relationship was a contract of service under section 2 of the Employment Act
The Respondent pleaded there was no contract of service as envisaged by section 2 of the Employment Act. The court rejected this, holding that the Act applies to oral and written contracts alike, and the relationship between the parties was plainly a contract of service.
Relevance of section 45(3) Employment Act (service of less than thirteen months)
The court declined to apply the provision as it had been declared unconstitutional by the High Court and parties had not addressed it
The Respondent argued the Claimant served less than thirteen months and could not claim unfair termination under section 45(3). The court noted the provision had been declared unconstitutional by the High Court, and in any event the parties had not addressed the issue, so it said no more.
Entitlement to severance pay and medical reimbursement
Severance pay refused absent redundancy; medical bills recoverable under the Employment (Medical Treatment) Rules, 1977
Severance pay is tied to redundancy, which did not arise. The Medical Treatment Rules place a statutory obligation on employers, including employers of house helps, to meet medical expenses for illness contracted in employment, so the Claimant was reimbursed.
Legal principles established
#- The statutory burden in unfair termination complaints: the employee proves unfair termination occurred, the employer justifies the grounds
- Employees on monthly wages, including house helps, whether on oral or written contracts, can only be terminated in writing
- Where the employer fails to produce a written contract, the employee's statement of the terms prevails over contradictory statements
Court orders
#- 1.Award of one month salary in lieu of notice of Kshs 8,723/-
- 2.Award of September 2012 salary balance of Kshs 5,866/80
- 3.Award of underpayment arrears of Kshs 67,899/-
- 4.Reimbursement of medical bills of Kshs 2,347/-
- 5.Award of one month compensation for loss of employment of Kshs 8,723/-, total Kshs 93,558/80
- 6.Respondent to issue the Claimant with a Certificate of Service within the next 21 days
- 7.No order as to costs
- Jurisdiction invoked
- Industrial Court Act, section 20(1); Employment Act (dispute of unfair termination referred to the Industrial Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphine M. Akinyi O v Farhiyo Mohamed [2013] KEELRC 613 (KLR)", Case Analysis (2013). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/613/eng@2013-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.