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I worked as a shamba boy in a home in Mombasa, Kenya. I was given notice of termination and was informed that I would be paid for three months of work. However, I have only received payment for one month and have yet to receive any compensation for my unused 28 leave days. I am seeking advice on how to take legal action against my former employer. I would greatly appreciate any guidance or information

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Legal Action for Unpaid Wages and Leave Days in Kenya

Introduction
Legal Framework
1. Employment Act, 2007
2. Relevant Case Laws
Steps to Take Legal Action
1. Documenting Your Claims
2. Reporting to the Labour Office
3. Filing a Case in the Employment and Labour Relations Court
Conclusion
Sources

1. Introduction

In Kenya, the rights of employees, including domestic workers such as shamba boys, are protected under the Employment Act, 2007. If you have been terminated and have not received your full entitlements, including unpaid wages and compensation for unused leave days, you have the right to seek legal redress. This guide will provide you with the necessary steps and legal framework to take action against your former employer.

2. Legal Framework

2.1 Employment Act, 2007

The Employment Act, 2007, is the primary legislation governing employment relationships in Kenya. Key provisions relevant to your situation include:

Section 28: Entitles employees to at least 21 working days of paid annual leave after every 12 consecutive months of service.
Section 35: Requires employers to provide notice of termination or payment in lieu of notice.
Section 49: Provides for remedies in cases of unfair termination, including payment of wages and compensation for leave days.

(Source: The Employment Act, 2007 ↗)

2.2 Relevant Case Laws

Cause 42 of 2018: This case involved an employee who sought payment in lieu of notice, service pay, and compensation for unpaid leave days. The court ruled in favor of the employee, emphasizing the employer's obligation to fulfill all statutory entitlements upon termination.
- Parties: Employee vs. Employer
- Outcome: The court awarded the employee compensation for unpaid leave days and other entitlements.
Employment and Labour Relations Cause 1340 of 2017: This case highlighted the importance of due process in termination and the employer's duty to pay all outstanding dues, including leave days.
- Parties: Employee vs. Employer
- Outcome: The court ruled that the employer must pay the employee for all accrued leave days and any other outstanding payments.
Cause 1453 of 2017: The court reiterated that any changes to the notice period must be clearly communicated and agreed upon by both parties. The employer was ordered to pay the employee for the full notice period and any unpaid leave days.
- Parties: Employee vs. Employer
- Outcome: The court ordered the employer to pay the employee for the full notice period and accrued leave days.

3. Steps to Take Legal Action

3.1 Documenting Your Claims

Before taking any legal action, ensure you have all necessary documentation to support your claims. This includes:

Employment Contract: If available, this will outline the terms of your employment, including notice periods and leave entitlements.
Termination Notice: Keep a copy of the notice of termination provided by your employer.
Payslips/Payment Records: These will help demonstrate the payments you have received and any outstanding amounts.
Leave Records: Document any leave days you have taken and those that remain unused.

3.2 Reporting to the Labour Office

The first step in seeking redress is to report the matter to the nearest Labour Office. The Labour Office can mediate between you and your employer to resolve the dispute. You will need to:

File a Complaint: Submit a formal complaint detailing your grievances, including unpaid wages and leave days.
Provide Evidence: Present all relevant documentation to support your claims.

3.3 Filing a Case in the Employment and Labour Relations Court

If mediation at the Labour Office does not resolve the issue, you can file a case in the Employment and Labour Relations Court. The process involves:

Drafting a Statement of Claim: This document outlines your case, including the facts, legal basis, and the relief you are seeking.
Filing the Claim: Submit the Statement of Claim to the court and serve a copy to your former employer.
Court Proceedings: Attend court hearings where both parties will present their evidence and arguments. The court will then make a ruling based on the merits of the case.

4. Conclusion

As a former shamba boy who has not received full payment for your notice period and unused leave days, you have the right to seek legal redress under Kenyan law. By documenting your claims, reporting to the Labour Office, and potentially filing a case in the Employment and Labour Relations Court, you can pursue the compensation you are entitled to.

5. Sources

By following these steps and utilizing the legal framework provided, you can effectively seek justice and obtain the compensation you deserve.