Grace Nanzala Koril v Emma Khayanzi Ambani [2021] KEELRC 658 (KLR)
The bottom line
#A Kenyan employer who sacks a domestic worker without notice or a hearing must pay compensation, even when the employer never shows up in court.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
The termination was not procedurally fair because the employer neither informed the Claimant of the reasons for termination nor heard her before terminating.
Section 41 of the Employment Act supplies the structure for procedural fairness, importing the tenets of natural justice into the employment relationship. The employer must explain the reasons for contemplated termination and hear representations. The Claimant's uncontroverted evidence was that she was dismissed abruptly, told to hand over keys and phone, without notice or a hearing. With no rebuttal from the Respondent, the Court concluded the procedure was not followed at all.
Substantive fairness and burden of proof
The termination was not substantively fair; the employer bore and failed to discharge the burden under section 45 of proving a valid and fair reason.
Section 45(1) and (2) of the Employment Act prohibits unfair termination and defines it as one where the employer fails to prove the reason for termination was valid and fair. The Respondent, having not entered appearance or filed a response, adduced no evidence demonstrating the reasons for the termination. The burden under the statute therefore remained undischarged, and the termination was substantively unfair.
Underpayment against statutory minimum wages
The Claimant was underpaid; the applicable minimum wage under the wage orders is inserted into the contract notwithstanding the agreed lower salary.
Section 48 of the Labour Institutions Act provides that minimum rates established in a wages order constitute terms of employment that may not be varied by agreement. Where a contract provides less remuneration than the statutory minimum, the wage-order terms are inserted into the contract. Comparing the Kshs. 5,000 salary with the successive wage orders for house servants, the Court found underpayment, but limited recovery to the three-year limitation window.
Limitation of employment claims
Reliefs could only be awarded for the three years preceding filing of the claim, i.e. 6th February 2014 to 8th May 2016.
Section 90 of the Employment Act overrides section 4(1) of the Limitation of Actions Act and bars civil proceedings based on the Act or a contract of service unless commenced within three years, with an exception for continuing injury within twelve months of cessation. The reliefs sought did not fall within the exception, so entitlements from May 2010 could not be resurrected; only the period from 6th February 2014 was recoverable.
Remedies: notice pay, compensation, leave, service pay and house allowance
The Claimant was awarded one month's salary in lieu of notice, five months' gross salary as compensation under section 49(1)(c), unpaid leave, service pay under section 35(5), and house allowance at 15% of the minimum wage, all limited to the limitation period.
The abrupt termination without notice entitled the Claimant to one month's salary in lieu of notice under sections 36 and 49(1). The circumstances, including length of service and manner of termination, justified an award of five months' gross salary under section 49(1)(c). Untaken leave was awarded for 2014-2016 only; service pay was computed at 15 days per year worked under section 35(5); house allowance was awarded at 15% of the relevant minimum wages.
Legal principles established
#- Wage orders establishing minimum rates of remuneration constitute terms of the employment contract and cannot be contracted out by agreement.
- Causes of action arising out of the Employment Act or a contract of service must be commenced within three years, subject to the continuing-injury exception.
- The burden of proving that the reason for termination is valid and fair rests on the employer; failure to adduce evidence renders the termination substantively unfair.
Court orders
#- 1.Judgment entered for the Claimant for one month's salary in lieu of notice of Kshs. 10,594.00
- 2.Compensation pursuant to section 49(1)(c) of the Employment Act of Kshs. 54,770.00 (five months' gross salary)
- 3.Unpaid house allowance of Kshs. 4,577.00
- 4.Unpaid leave allowance of Kshs. 32,863.00
- 5.Underpayments of Kshs. 15,514.00
- 6.Interest at Court rates with effect from the date of filing the suit till full payment
- 7.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over disputes arising out of employment and contracts of service (Employment Act, 2007; Labour Institutions Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Nanzala Koril v Emma Khayanzi Ambani [2021] KEELRC 658 (KLR)", Case Analysis (2021). Cause No 216 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/658/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.