[2018] KEELRC 2298 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NUMBER 1589 OF 2015

MARY AUMA AMIMO.........................CLAIMANT

VERSUS

VIJAY SHRIVASTAVA......................RESPONDENT

JUDGEMENT

1. The claimant pleaded that at all material times she was employed by the respondent as a nanny for the respondent’s aging mother at a monthly salary of Kshs 11,600 with effect from 19th December, 2014 upto 13th January, 2015 when her services were unlawfully terminated.

2. According to the claimant her obligations as per the contract was to take care of the needs of the old lady from Monday to Saturday which included washing, feeding, cleaning and changing her. The claimant pleaded that after the second month in employment the respondent and his family started to demand that in addition to her designed duties she further washes and minds the affairs of other members of the family including but not limited to washing their clothes, cleaning the house and washing dishes.

3. The claimant further pleaded that sometime in the month of March, 2005 due to negligence of the respondent, his servants and or agents the claimant fell ill and was diagnosed with typhoid whereof she was treated but the same kept recurring and her request for gloves in the course of duty was never heeded to. The claimant further pleaded that in the course of her sick leave, she sent a lady to the respondent’s home to assist with her duties pending her recuperation but the lady was turned down by the respondent.

4. According to the claimant, she reported back to work on 13th april, 2015 but was chased away with neither tangible reason nor hearing and her presented medical records thrown back t her. The claimant therefore considered the purported termination of her services unlawful. The claimant further averred that the respondent refused to pay her salary and terminal dues upon the termination of her services.

5. The respondent on its part denied that the claimant’s services were unlawfully terminated. The respondent stated that in 2014 hi mother was involved in an accident which resulted in difficulties in walking. For this reason, the respondent decided to employ two more nannies in addition to regular house help who used to take care of his mother. One would work during the day and another at night.

6. The claimant’s job description according to the respondent involved working during the day as alternative helper and would take over from the other nanny during evening and night hours. Further, in addition to their duties to the respondent’s mother the two nannies, the claimant being one of them, would assist the regular nanny in some of the general chores from time to time as would be necessary.

7. The respondent stated that when employing the claimant, the respondent clearly explained to the claimant her duties and obligations towards general engagements in assisting the regular nanny with some of the house chores. The respondent therefore denied that the claimant was allocated work that was not in line with her job description. The respondent further pleaded that all employees including the claimant were duly issued with adequate working gear including aprons and disposable gloves for their daily use.

8. The respondent therefore stated if the claimant suffered any illness, it was not as a result of respondent’s but claimants own negligence. The respondent further denied that the claimant sent any lady to this home and that the claimant was summarily dismissed for absconding duty.

9. In her oral testimony in court, the claimant stated additionally that she used to work from Monday 7:30 to 5:50 pm and that she used to work up to Saturday. It was her evidence thatshe never used to work on Sunday. She further stated that she was provided with uniform but not gloves. It was her evidence that she got sick and went to hospital and was given one week off by the doctor. According to her, the respondent was aware of his sickness. She repeated as pleaded that she sent someone to relieve her. When she returned after recovery she was refused entry into the premises and when she produced her hospital documents they were thrown back at her and told she was falling sick too often and someone had been found to replace her. According to her, she got sick from her work conditions.

10. Upon the dismissal, the responded offered to pay her Kshs 4,000/= on condition that she signed a form but she refused to sign. In cross-examination she stated that she was employed by the respondent on 19th December, 2014 and that when she was employed, the respondent’s mother was not in the premises. According to her the respondent knew she was sick and asked her to bring along her sick sheet when she returned to work.

11. The respondent in his evidence stated that she knew the claimant through his house help. According to him the claimant was provided with uniform and gloves and that the gloves were not needed all the time. He further stated that the claimant never complained of ill-health. It was further his evidence that the claimant last worked on 30th June 2015 and therefore had to look for her replacement. According to him, he never terminatedthe claimant’s services but it was the claimant who absconded work. He further stated that the sick off letter was taken to him on 13thJuly, 2015.

12. In cross-examination he stated that he called the claimant severally but she never picked his calls. The respondents second witness Ms Eunice Auma testified that they worked with the claimant for 8 months from December 2014 to July 2015. According to her, the claimant was issued with uniform and gloves to use in taking care of the respondent’s mother. She further stated that the claimant would assist with other household chores when the old lady was asleep.

13. She further stated that the claimant was paid her June salary and never came back. She performed claimant’s work for two days and whenever she called her she kept saying she would come back. The respondent therefore got someone else.

14. In cross-examination, she said she saw gloves but never say the claimant wear them. She further stated that the claimant was sick when she left work and that it was the respondent who escorted her to the bustop. She said she was not aware if the respondent gave her money to go to hospital.

15. This matter presents itself as a very unfortunate situation where the claimant who was carrying out very compassionate duties to the respondent’s mother had to separate from her employment under circumstances she considered unfair. Thecourt fully appreciates the respondent’s circumstances where he had a sick parent which needed round the clock attention. Absence of her minder ever for a minute is fully understood. However, as in all human affairs we all become victims of ill health at one point or another.

16. The respondent’s witness stated that when the claimant left work at the material time she was unwell and it was the respondent who escorted her to the bustop. The respondent’s claim that the claimant absconded work therefore does not seem correct. The claimant may have taken long to recover promoting the respondent due to exigency of the situation as outlined above to get a replacement. Whereas this may have been the only option available in the circumstances; the respondent ought to have notified the claimant of such intention prior to replacing her. Denial by the respondent of the claimant‘s illness was in bad faith.

17. The court in the circumstances finds that the termination of the claimants services was unfair and enters judgement against the respondent as follows:

a. One month’s pay in lieu of notice 11,600

b. One month salary in lieu of leave 11,600

c. Twelve months salary as compensation for

Unfair termination of services 139. 200

162,400

d. Costs of the suit.

18. It is so ordered.

Dated at Nairobi this 16th day of February, 2018

Abuodha J. N.

Judge

Delivered this 16th day of February, 2018

In the presence of:-

…………………………….... for the claimant

……………………………… for the Respondent

Abuodha J. N.

Judge