Joyce Mwende Kang’aa v Shaliy Awan & another [2015] KEELRC 845 (KLR)
The bottom line
#A Kenyan employer who fired a house help during her annual leave was ordered to pay underpayments, notice, compensation and service pay.
What this practically means
#Executive summary
#Key legal issues
#Underpayment against the statutory minimum wage
The Claimant was underpaid; the statutory minimum wage for a House help/Cleaner in Nairobi applied and the shortfall is due as of right
Section 46 of the Labour Institutions Act provides for publication of wages in the Kenya Gazette; once published they apply to contracts of employment. The Claimant's salary of Kshs. 7,000 and later Kshs. 8,000 fell below the minima under Legal Notice No. 71 of 2012 (Kshs. 8,579.80) and Legal Notice No. 197 of 2013 (Kshs. 9,780.95). Underpayments were computed monthly, totalling Kshs. 34,985.70.
Absence of a written contract of employment
The employer's failure to issue a written contract under sections 9 and 10 of the Employment Act exposed it, and the employee's word must suffice in a conflict
Sections 9 and 10 of the Employment Act require a written contract within two months of commencement of employment. The Claimant was never issued one. The duty lies on the employer, not the employee, to issue the contract; absence of the contract means the employee's account of unfair treatment prevails in a dispute.
Alleged discrimination on grounds of pregnancy
Discrimination on grounds of pregnancy would violate sections 5 and 46 of the Employment Act and Articles 27 and 41 of the Constitution, but the claim failed for want of evidence
A party alleging discrimination must outline the circumstances in which they were discriminated against. There was no evidence that the Claimant applied for maternity leave or notified the employer of her pregnancy through medical notification and that this was denied. The employer has no duty to know of a pregnancy; the employee must bring it to the employer's attention, with evidence of differential treatment flowing from that knowledge.
Unfair termination of an employee on lawful leave
Termination while the Claimant was lawfully on annual leave, without reason or procedure, was unfair under section 45 of the Employment Act
It was uncontested that the Claimant was called on 5th March 2014 while on annual leave and told not to report back, and her February 2014 salary was paid via M-Pesa. The continued communication and payment of salary arrears showed the Respondents knew why she was away. Instead of recalling or dismissing her for desertion, they terminated her while she was lawfully away, an unjustified unfair labour practice.
Maternity leave claim after termination
A maternity leave claim cannot arise after termination
The Claimant delivered in May 2014, after her termination in March 2014. Maternity leave entitlements under section 29 of the Employment Act arise where delivery falls within the duration of employment or before termination is effected. The claim was therefore declined as not due.
Service pay entitlement
Service pay was due for the two complete years served, at 15 days' pay per year, because no payslip or statement of statutory deductions was issued
Under section 35 of the Employment Act, where an employer does not issue a payslip or statement showing what dues were paid, the Court cannot assess whether statutory deductions were remitted, and service pay becomes due. The Claimant served two complete years and was awarded 15 days' pay per year based on her last salary.
Legal principles established
#- Where no written contract of employment is issued, the word of the employee alleging unfair treatment must suffice
- It is the employer's duty to issue a written contract of employment, not the employee's duty to demand it
- An employee alleging discrimination must outline the circumstances of the discrimination, and it is not the employer's duty to know of a pregnancy
- Termination of an employee who is lawfully away from work (on annual leave) is an unfair labour practice under section 45 of the Employment Act
- Employers must pay at least the statutory minimum wage; published wage guidelines are mandatory and can only be improved upon
Court orders
#- 1.A declaration that the Claimant was unfairly terminated
- 2.Compensation of Kshs. 29,342.85
- 3.Notice pay of Kshs. 9,780.95
- 4.Underpayments of Kshs. 34,985.70
- 5.Service pay of Kshs. 9,780.95
- 6.Costs of the case
- Jurisdiction invoked
- Employment and labour relations jurisdiction over a claim of underpayment, unfair termination and contravention of the Employment Act and the Labour Institutions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce Mwende Kang’aa v Shaliy Awan & another [2015] KEELRC 845 (KLR)", Case Analysis (2015). Cause No. 565 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/845/eng@2015-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.