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The Employment and Labour Relations Court in Kisumu recently ruled that a worker had been unfairly dismissed and was entitled to back pay and other statutory benefits. This ruling clarified that workers cannot be paid below the statutory minimum wage and can seek legal redress if underpaid.
These developments followed a case in which a domestic worker, who had served her employer for six years on a monthly salary of Ksh4,000, an amount the court found to be below the legal minimum wage, with no allowances or leave pay, filed a claim for underpayment.
The employee approached the court seeking payment for her underpayment, house allowance, leave pay, salary in lieu of notice (termination pay) and compensation for unfair termination.
On the other hand, the employer argued that the worker was a casual employee who had absconded from duty, claiming she was therefore not entitled to full employment rights.
In an earlier ruling, a trial court found that the worker was a full-time employee, her termination was unfair and that she qualified for statutory benefits, including adjustments to meet minimum wage standards.
However, the employer was still determined to challenge the decision and appealed the case.
On appeal, the court upheld the finding of unfair termination but reduced some of the awards, including gratuity, and ordered that the worker be paid the house allowance, leave pay, and salary in lieu of notice, totalling Ksh569,717.48.
The court also referenced an earlier ruling stating that if an employee leaves their workstation without communicating their whereabouts, it is the employer’s legal duty to reach out and seek clarification. If the employer decides to terminate the employee’s services, that process must be done formally and in writing.
“The law is therefore well settled that an employer claiming that an employee has deserted duty must demonstrate the efforts made towards getting the employee to resume duty. At the very least, the employer is expected to issue a notice to the deserting employee that termination of employment on the ground of desertion is being considered,” the court documents read in part.
In his ruling, Justice Jacob Gakeri emphasised that “Minimum wage is a prescription of the law and binds all employers of employees in those categories,” making it clear that paying below the legal minimum is unlawful.
Further, the court maintained that employers should pay their employees for all the leave days not taken, ruling that annual leave is a statutory right of every employee.
“Analogous to house allowance, annual leave is a statutory right of every employee, and if not taken, the employer is required to pay for the leave days the employee worked,” he added.
At the same time, the court pointed out that employers claiming that their employees deserted duty must demonstrate reasonable efforts to contact the employee and follow proper disciplinary procedures as per the law.
