Househelp loses Sh1.3m claim after court finds she abandoned job

An appellate court has overturned a Sh1.3 million judgment awarded to a domestic worker who claimed she was unfairly dismissed by her employers.

The Employment and Labour Relations Court’s Appeals Division set aside the December 2023 decision, which had granted Tabitha Kimanthi substantial damages.

Kimanthi sued Mr and Mrs Sushma Nimish Shah for alleged unlawful termination of her employment as a house help caring for the Shah family’s elderly mother.

According to the appellants, Kimanthi was sent on leave from July 17 to August 1, 2019. 

When she returned on the scheduled date, she reportedly asked to postpone resuming duties by a day to visit her brother. 

She allegedly returned on August 5, only to collect her belongings and leave without explanation.

Afterwards, the Shahs could not reach her on the phone and eventually reported the matter to the labour office.

Kimanthi, however, contended that her employers brought in a replacement on July 23, and told her to leave, instructing her to return on August 1. Upon her return, she testified, she was told there was “no work” and dismissed without terminal benefits.

In his ruling, Justice Nelson Abuodha found Kimanthi absconded from duty.

“The appellant's statement that the respondent came back from leave on 1st as requested but asked that she resumes work the next day and, in the meantime, visit her brother therefore becomes more plausible than the respondent's statement,” the judge stated. 

“If it is correct the respondent was released to go on leave, which she never denied … the only reasonable conclusions from the respondent's claim that she left on 24th after the appellant brought another employee, is that she either left on 24th in protest or she was not being truthful.”

The judge also criticised the trial court’s approach to the overtime claims that formed a significant portion of the award. 

“A claim for overtime work cannot be ruled out for domestic help but just like in other cases where overtime is claimed, must be justified by calling upon the house help to lead evidence on his or her daily routine for the court to see thereby that such routine could not be accomplished without working overtime,” he stated.

“There was no evidence led before the trial court that this was intensive and non-stop, the aggregation of which would entail working more than eight hours per day and every day. The trial court appeared to have proceeded more on assumption than evidence.”

The magistrate had awarded Kimanthi Sh670,553.84 for weekday overtime, Sh258,810.25 for weekly rest-day overtime, Sh78,692 for public holiday overtime, Sh9,600 for annual leave, and 12 months’ salary compensation for unfair termination.

The appellate court found the employer had taken reasonable steps to locate the missing employee, including reporting to the labour office—a fact the respondent conceded she was aware of. 

“The trial court's finding that there was no tangible evidence that the appellant tried to contact the respondent was therefore erroneous,” Justice Abuodha ruled. 

“The court having found that there was sufficient evidence that the appellant was justified in terminating the respondent's service on account of absconding duties, the issue of procedural fairness does not arise since the respondent was never there to be subjected to such process.”

The judge set aside the unfair dismissal finding and all consequential compensation orders, though he allowed Kimanthi to collect any terminal dues already calculated and deposited with the labour office. 

The court declined to award costs to either party.