Habari Ndio hiyo....
Robai Musinzi v Mohammed Safdar Khan
Industrial Court of Kenya at Nairobi
Cause No. 267 of 2012
M.W. Mbaru, J
December 19th, 2012
Reported by Teddy Musiga
The Industrial Court has ruled that house helps are entitled to terminal benefits and a certificate of service upon termination of their contracts of employment. Justice M. W. Mbaru held that it was the duty of employers at the earliest opportune time to reduce oral contracts of employment into written contracts, as it would help in spelling out the terms and conditions of engagement between the parties.
The ruling was a result of a claim filed by the claimant against the respondent seeking inter-alia terminal dues for wrongful dismissal and termination of employment.
The claimants claim before the court were 3 months’ pay in lieu notice, house allowance, severance pay, days worked unpaid, overtime unpaid, leave unpaid, statutory dues and a certificate of service.
Issues for determination
i. Whether an employer has a duty to reduce oral contracts into written contracts.
ii. Whether an employee employed under an oral contract is entitled to terminal benefits akin to employees employed under a written contract.
iii. Whether an employee is entitled to a certificate of service as of right.
iv. Whether the termination was lawful.
Held:
1. A verbal contract is a contract that can confer rights and can be enforced and therefore all employers should seek at the earliest opportunity to reduce oral contracts of employment into writing. This would help in spelling out the terms and conditions of engagement between the parties. Under Sections 35 (1) and (3) of the Employment Act, the claimant was serving and being paid on a regular basis each month despite there being a written contract for this purpose. She is therefore entitled to such terms and conditions of service as she would have been entitled under the Employment Act had she been initially employed under a written contract and consequently entitled to severance pay.
2. On the claim for leave in the case of accrued leave upon termination, the employer shall pay an employee on a pro rata basis an amount in cash for the accrued leave to which that employee is entitled. On the notice pay, the court ruled that an employer may terminate a contract of employment without notice if he/ she pays the employer a sum equal to the amount of remuneration which would have accrued to the worker during the period of the notice. Regarding house allowance, section 31(1) of the Employment Act provides that an employer shall at all time, at his own expense, provide reasonable housing accommodation for each of his employees either at or near the place of employment, or shall pay to the employees such sufficient sum as rent in addition to the wages or salary of the employee as will enable the employee to obtain reasonable acc ommodation. In the absence of that, and as was the case, the claimant was entitled to house allowance. The court however rejected her claims for statutory duties as those were dues to government bodies and cannot be conferred on the claimant.
3. Section 10 of the Employment Act lists some of the specific features that must be incorporated in the contract of employment include inter alia entitlement to annual leave, including public holidays, and a holiday pay (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday on the termination of employment, to be precisely calculated); pension and pension schemes; the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment et.al
4. A certificate of service is a legal right for all employees at the end of every employment. Issuance of a certificate of service helps the parties to determine their relationship. In the absence of a certificate of service, the court is constrained to only rely on the evidence of the claimant where the defendant fails to enter appearance or defence. The court directed that the claimant be issued with a certificate of service.
5. That terminating the employment contract on the ground that she was ‘too old to serve’ is not a reasonable ground under any written law to terminate any employment and the respondent is found to be liable as the same was not justified.
Petition allowed, respondent to pay the claimant a sum total of Ksh. 175, 533 broken down as follows:
1. One month salary in lieu of notice at Ksh. 11,000.00.
2. House allowance at 15% of basic salary amounting to Ksh. 72,500.00.
3. Severance pay amounting to Ksh. 22,000.00.
4. Pay for 11 working days in October 2011 unpaid at Ksh. 4,033.00.
5. Unpaid leave days all amounting to Ksh. 44,000.00.
6. Two month’s salary as compensation for unfair termination all amounting to Ksh. 22,000.00.
TOTAL KSH. 175,533.00.Quote:Buy when there's blood in the streets, even if the blood is your own...