[2022] KEELRC 14727 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT ELDORET

CAUSE NO. 226 OF 2018

CAREN KHASIANDI..............................................................................CLAIMANT

VERSUS

SUSAN RUTO......................................................................................RESPONDENT

JUDGMENT

1. The claimant averred that she was employed by the respondent from 1st January, 2015 to 4th July, 2017 when the respondent unlawfully terminated her services and refused to pay her dues.

2. The claimant further averred that prior to termination she was not issued with one months’ notice or pay in lieu and that she was not accorded opportunity to be heard prior to termination.

3. The claimant further averred that during the period she worked the respondent grossly underpaid her and that she worked overtime and during public holidays without pay.

4. The respondent on its part pleaded that though the claimant was her employee the terms of employment allowed either party when pressed by circumstances to terminate the employment and resume thereafter. The claimant therefore worked for the respondent for 6 months from 6th May, 2015 to December 2015 when the claimant terminated the contract to attend to her old sick mother for a period of 6 months. She further worked for 13 months from 3rd May, 2016 to 4th July, 2017 with one month leave in December, 2016.

5. In May to October, 2017 the respondent’s employment was terminated due to illegal strike by nurses and as such the respondent was under financial stress hence requested the claimant to go home until nurses resume work as it would have been difficult to pay her salary since the respondent depended wholly on her salary.

6. The respondent further denied the claimant worked overtime and stated that she used to take care of a school going child and that entailed receiving the child from school at 4:00pm, washing her clothes, cooking food and that the claimant used to work for a maximum of 4 hours per day since the only person present in the home was the claimant and the respondent’s granddaughter.

7. The respondent further denied the claimant was entitled to leave dues and further stated that the claimant was fully paid her leave dues in December, 2016.

8. The respondent further stated that the claimant was not entitled to compensation for unfair termination because she refused to resume work even when the nurses strike ended.

9. At the oral hearing the claimant adopted as her evidence in chief her statement recorded on 28th June, 2018.

10. She further stated that she was employed as a house help and her monthly salary was Ksh.4,000/-per month. She worked for the respondent for 2 ½ years and that she left work in July, 2017 without being given reason for termination and further that she was not given notice of termination.

11. In cross -examination she stated that she used to work from 6 am to 9. 00 pm and that the work was a lot. According to her, she used to go to school from 6. 00 am to 4. 00pm and that she used to work every day.

12. According to the claimant. She knew the respondent was a nurse but never knew the nurses were on strike. She denied going home for six months and that in December, she used to go home for one week. She further denied being told she would resume work after strike.

13. The respondent on her part stated that she worked for Moi Teaching and Referral Hospital as a nurse and that the claimant used to work for her as a house help. She relied on her witness statements recorded on 7th August, 2018. According to her, the claimant worked from January, 2015 until December, 2015 then took a break to attend to her sick mother. She came back in 2016 and that she never paid the claimants salary when she was away. According to her they agreed to suspend the claimant’s salary.

14. According to the respondent the claimant worked until June, 2017 when the nurses went on countrywide strike. The strike went on until August, 2017. During the strike the respondents was not paid her salary but paid the claimant her May salary from the respondent’s own resources.

15. The respondent later agreed with the claimant that she goes home until the respondent resumes work. According to the respondent she never terminated the claimant’s service but rather they sat and agreed that the claimant goes home during the strike and stay until the same was called off. The respondent further stated that the claimant was earning Ksh. 4000/= per month and that in December, her salary was increased to Ksh.4,500/=. According to the respondent she agreed with the claimant on what she could afford and further that the claimant used to stay with her and she catered for her upkeep.

16. The respondent further stated that the claimant performed domestic chores and used to wake up and prepare her grandchild for school and receive her back. The claimant never worked for twenty-four hours. She further stated that the claimant used to go off and on Sundays she used to go to church.

17. In cross – examination she stated that the claimant worked from January, 2015 to December, 2015 she then took a break and came back in May 2016 and worked until June, 2017.

18. The claimant used to wake up at 6:30 a.m to prepare breakfast for the grand daughter and see her off to school at 7:30 am. It was further her evidence that they stayed only the three of them and most of the time, the claimant was the only one at home during lunch hour and that she prepared her own lunch.

19. In the evening the claimant would be free from around 8:00pm and by 9. 00pm she would go to bed.

20. The respondent denied terminating the claimant’s service and stated that they both agreed that the claimant would leave during the strike period because she had no source of income to pay her and further that she paid the claimant her salary when she left.

21. This matter involves a domestic work relationship. The Court is alive to the personal nature of such a relationship. Normal employment practice and procedures usually do not strictly apply in the circumstances. For instance, it is not possible to strictly regulate the number of hours worked to arrive at a conclusion whether a domestic servant worked overtime or not. Most of the time an in-person domestic worker is among the first people to be awake and the last one to go to bed. It is however not possible that the domestic worker would be working thought. The number of hours worked is usually aggregated and may constitute regular working hours or less or more hence overtime. Every domestic work relationship should therefore be considered under its own unique circumstances.

22. The claimant and the respondent both filed witness statements which they relied on as their evidence in chief. The claimant on her part filed a very brief witness statement in which she merely stated that she worked for the respondent as a house girl earning Ksh.4,000/= per month and that she used to start working from 5. 00am and end from 9. 00pm. she further stated that she was stopped from working on 4th July, 2017 without reasons and further the respondent paid her salary but did pay her for the four days worked in the month of July. This statement was recorded on 28th June, 2018.

23. The respondent on her part recorded an elaborate statement in which she detailed the nature and circumstances of her working relationship with the claimant.

24. According to her she employed the claimant to take care of her granddaughter since it was difficult for her to do so given the nature of her job. She further stated that the nature of the claimant’s work entailed preparing breakfast for her granddaughter, cleaning clothes and the house and cooking supper. Upon completing her job, the claimant would be free to go anywhere she desired until 4. 00pm when she was required to wait for the grand daughter from where she was being dropped by the school bus.

25. The respondent further stated that the claimant started working from 6th January, 2015 and resigned in December, 2015 as her mother was unwell and she needed to be with her. The claimant came back in May, 2016 and she employed her.

26. In April, 2017 the nurses went on strike countrywide and that she stayed home until October, 2017 when the strike was called off. According to the respondent, she was not paid during the strike period hence it became extremely difficult for her to raise the money for the claimant’s salary. In June, 2017 she requested the clamant to take unpaid leave and if possible get another job until when nurses resume work. This statement was recorded on 7th August, 2018 in response to the claimant’s claim and statement.

27. The claimant neither filed any supplementary statement nor rebutted these allegations by the respondent during her oral evidence in Court.

28. The Court has taken judicial notice that there was a countrywide nurses strike from April, 2017 to October, 2017. The Court therefore is tempted to believe the respondents version of the circumstances of the work relationship between her and the claimant.

29. The evidence by the claimant presented by her witness statement and testimony in Court was more concealing than revealing of the circumstances under which she worked for the respondent. Her statement and oral evidence were couched to portray the respondent as responsible for unfair termination of her service yet she knew or presumed to have known the circumstances under which she worked for the respondent and how she left employment.

30. As observed earlier domestic work relationship is unique and usual relationships and procedures obtaining in normal employment may not strictly apply. The Court further notes that it is a critical service in most homes. The rights of the workers involved in this service must however be protected but at the same time formalities of regular employment may be overlooked due to the unique nature of the relationship.

31. To this extent the Court is not persuaded that the claimant has made out a case for unfair termination of service and the other heads of claim she made in her statement of claim such as overtime, work during holidays and so on.

32. The Court however noted that the respondent hired the claimant at a monthly salary of Ksh.4,000/- in January, 2015. The minimum wage for the period for a domestic worker in Eldoret back then was Ksh.5,844/20. There was therefore an underpayment of Ksh.1,884/20 per month. Further in 2017 the minimum wage for Eldoret was Ksh.6,896/15 while the respondent paid the claimant Ksh.4,500/= hence an underpayment of Ksh. 2,396/15.

33. Therefore, for the year 2015 and 2016 (24 months), the claimant was underpaid by Ksh.45,220/80 and for the year 2017 when the claimant left in June, 2017 (six months) she was underpaid by Ksh.14,376/90. The claimant is further entitled to Ksh.920 being salary for the four days she worked in July, 2017.

34. In conclusion the Court awards the claimant the sum of Ksh. 60,517/70.

35. The claimant being partially successful, each party shall bear their own costs.

36. It is so ordered.

DATED AND DELIVERED AT ELDORET THIS 30TH DAY OF MARCH, 2022

ABUODHA NELSON JORUM

JUDGE ELRC