Minimum wage: Your worker took less? Illegal, judge rules
Justice Monica Mbaru dismissed the employer's argument that the wage of Sh5,000 was mutually agreed upon, stating that parties cannot consent to an illegality.
An attempt by a company to justify underpaying its employee hit the brick wall after the court declared that an employer cannot go below the set minimum wage.
In the case, a Kenyan turnboy had sued his former employer for abandoning him in Uganda before sacking him via a phone call.
Mr Wilson Aron disclosed to the Employment and Labour Relations Court that prior to his dismissal, Bokhol Transporters Limited had been underpaying him.
While ordering the company to compensate Mr Aron for unfair termination of employment, Justice Monica Mbaru dismissed the employer's argument that the wage of Sh5,000 was mutually agreed upon, stating that parties cannot consent to an illegality.
“The Wage Orders published by the Minister provide for the minimum wage,” declared the judge on March 13.
According to the Wage Orders, a turnboy working in Mombasa in 2021 was entitled to a basic wage of Sh14,658.85, plus a house allowance of Sh2,198.85, bringing the total gross salary to Sh16,857.65.
Mr Aron stated that Bokhol Transporters Limited employed him as a turnboy from December 17, 2015 to May 25, 2021, when his employment was unfairly terminated.
His primary duties included accompanying the driver, loading and unloading goods into motor vehicles, changing tyres, and handling other assigned tasks.
According to his court documents, he worked seven days a week without a rest day and earned a monthly wage of Sh5,000.
He argued that he was underpaid contrary to the Wage Orders, never took annual leave, worked overtime without compensation, and remained at work during gazetted public holidays without extra pay.
The complainant added that no statutory deductions were remitted to the National Social Security Fund (NSSF) or the National Hospital Insurance Fund (NHIF) during his employment period.
“Aron was therefore underpaid by Sh11,857.65 each month. Mr Aron did not resume work after March 25, 2021. He filed suit on August 17, 2021. He cannot justify why he sat on his rights from 2015. He can only claim for underpayments going back to August 16, 2020, a period of eight months tabulated from August 2020 to March 2021,” said the judge.
Last year, a magistrate’s court had upheld Mr Aron’s dismissal.
Mr Aron stated that his troubles began when he was involved in an accident on May 15, 2021 in Gulu, Uganda.
He said the accident occurred when he was directing the driver of a vehicle into a parking lot.
“The driver lost control and ran over my leg, leading to my hospitalisation for nine days. The company facilitated my treatment but later abandoned me upon my discharge,” he said.
According to Mr Aron, he was subsequently called by the company's director, who informed him that his employment had been terminated and that he needed to find his way back to Kenya.
He, therefore, claimed that his termination was unfair as he was dismissed without notice, a hearing, or payment of his terminal dues.
Bokhol Transporters Limited disputed these allegations, maintaining that while they employed Mr Aron as a turnboy, he was not dismissed on May 25, 2021, as claimed.
The company contended that he remained an employee and was even on duty in September 2021, contradicting his assertion that his employment ended in March 2021.
The company also challenged the circumstances surrounding Aron's accident in Uganda.
According to them, a police abstract from Oyam Police Station in Uganda indicated that the accident was caused by a different vehicle, not theirs.
“Mr Aron had signed a Discharge Voucher acknowledging that another vehicle caused the accident,” the firm said.
The company dismissed his claim that he was abandoned in the hospital and unfairly terminated.
In her ruling, Justice Mbaru emphasised that an employer has a legal duty to trace an employee who has been absent without leave before termination.
She found that Bokhol Transporters Limited did not undertake its legal duty to end employment properly.
“The execution of the discharge voucher is insufficient to exonerate the firm from its legal duty. The trial court's findings that employment was terminated fairly based solely on the discharge voucher were in error,” said the judge.
Justice Mbaru further observed that Aron failed to account for his whereabouts between March 25 and May 25, 2021, when he sought unpaid wages.
However, she also found that the company had not properly addressed the reasons leading to the termination of his employment, thereby concluding that his employment was unfairly terminated and ordering compensation.
The court ordered compensation for unlawful dismissal, underpayment for eight months, leave pay, off-day compensation, and compensation for public holidays worked.