Thursday, November 20, 2014

Employees Need a Fair Hearing Before Termination or Dismissal

Employers have been complaining that the Industrial Court is quite harsh towards them. Some have argued that the industrial court is highly skewed in favour of employees. The proponents of this view argue that the court is a pro-employee court and employers stand no chance to win a suit in the court. This view has resulted to some responding with anger, disdain and admonition for the Court. Yet the wise ones should seek to investigate whether this is truly the case and what can be done to remedy this and avoid the risks that follow.
However, I believe that “Fidelity to the Law” is what exemplifies the industrial court in Kenya. You see all that the Industrial Court is doing is enforcing the law more strictly. Although the court tries to even the imbalanced power relations between employees and employers, the Court has simply been firm in enforcing the provisions of the law especially the Employment Act. When this happens, employers who have not been complying with the procedural and substantive aspects of the law will obviously receive adverse orders.
If an employee’s services are terminated unfairly, summarily dismissed without cause, an employee is not paid terminal dues, an employee is discriminated upon or even victimized, such conduct will obviously not portend well with the Court. The industrial court has been keen to ensure that both the procedural and substantive aspects of the employment act are enforced. An employer must conduct the employment relationship within fair rules that are stipulated in the Employment Act. Secondly, the reason for taking certain action must be fair and just.

Today we will highlight the most important aspects of procedural compliance. In this country, just like the world over, majority of people derive their livelihood through employment. The employment relationship is one that affects not just the employee, but the family too. It is therefore a most important relationship. That is why the law will frown upon the mode of firing popular in the media where an employer comes up to an employee and pronounces ‘You are fired’. This will not suffice under the watchful eye of the industrial court.

Procedural compliance mainly involve affording an employee a fair chance to be heard on any allegations raised before any adverse action is taken. This requirement prevents cases where decisions about the fate of employees, for instance a decision to terminate employment, are made in a rushed manner without involving the employee.

For instance when an employer calls an employee for an impromptu meeting only to serve the employee with a termination letter, without an explanation. In this case the employee may also asked to leave the employer’s premises immediately and only return after one week to collect the terminal dues. In this scenario, the employee could also be informed of various allegations of misconduct without being given an opportunity to respond.

Well, let us now clarify what a fair hearing entails as per the provisions of the law and most importantly, the pronouncements that the Industrial Court is making. To begin with, a fair hearing simply entails giving the employee an opportunity to be heard before any adverse action is taken.

Before terminating an employee or undertaking summary dismissal, an employee should be informed of the allegations against him. Such communication should also inform the employee of the date when a formal hearing will be conducted. During the formal hearing the employee should be allowed to be accompanied by another employee or representative of his choice (lawyers should be excluded at this stage). An employee should provide a response to the allegations in writing or orally during the hearing since the allegations had been communicated in advance.

The employer is not stopped from proceeding with the decision to terminate or summarily dismiss if the employee does not give a reasonable response. An employee can dispute all allegations and in such a case the employer only needs to ensure that a fair opportunity to be heard is given. It is for a conciliator or the court itself to then determine whether the reason for termination was fair and just. What is important is that the employer has complied with the first limb of procedural compliance.

The final decision should also be communicated in writing highlighting the reasons for termination or summary dismissal. If dissatisfied, the employee can file suit. In this case however an employer will easily prove that a fair hearing was afforded to the employee. If the court is satisfied, it will then delve into the merits of the decision.

In conclusion, it is important that employers adhere to the procedural requirements of the employment law. This will help employers avoid the risks that come with litigation. I believe that it also puts a human face to the termination process and dignifies the severance of the employment relationship.

Thursday, November 13, 2014

Lets learn to resolve labour disputes through alternative means

I came across a quote that forms the basis of this article ‘A lean compromise is better than a fat law suit’.

Today, there are a several industrial disputes pitting trade unions and the government through the ministry of labour. Such are the dispute on the dissolution of the National Industrial Training Authority and disputes within trade unions themselves. Inevitably,  the Industrial court is emerging as one of the busiest courts within the judiciary especially in Nairobi. For instance the number of cases filed in 2014, is likely to be about 2,500 cases. With about six judges at the Nairobi station, each judge is expected to hear and determine about 300 – 400 cases every year, assuming the turn-around period is one year. This translates slightly above 30 cases every month or a case each day. This means that a judge must be able to hear and deliver judgment on a case every day. However there are several ways of determining these 30 cases. A judge can decide to sit continuously for two weeks and hear all 30 cases, then reserve the other two weeks to write judgments. He only needs a day to deliver all judgments.

However those who have interacted with our judicial system know that our procedures are not a straight jacket. This best case scenario is usually interrupted by other official judicial functions and urgent interlocutory applications filed by parties. A judge may also need to attend to urgent personal or family matters for which he/she cannot be judges as judges are human beings like the litigants. In the meantime, the number of cases filed in the Court is also increasing by the day. Dealing with the backlog in the long term may just be a dream. This leads to the most important question, what do we do reduce the number of cases that find their way to court?

I use the above scenario as a basis of the solution which I believe if well co-ordinated will reduce the number of cases filed in the court to avoid any likely backlog of cases in the Industrial Court. Industrial relations are carried out by three social partners, these are the employer, employee, or their representatives and the government through the ministry of labour and social services. One of the most important pillars of productive industrial relations is good faith. Parties in an employment relationship are expected act in good faith towards each other during the entire cycle of the employment relationship i.e. recruitment to termination. This helps avoid the acrimony that is witnessed during litigation in Court.

The solution I believe lies in revamping alternative dispute resolution (ADR) mechanisms which include negotiation, mediation and conciliation. It is not as if these mechanisms are non-existent. On the contrary, the Labour Relations Act for instance provides for conciliation of disputes between trade unions and employers/employers’ associations through the ministry of labour. In this case a labour officer is appointed as a conciliator so as to help parties resolve the dispute. If parties agree, the conciliator’s certificate is filed in court and the decision made is adopted by the court. The law does not provide that the labour officer can for instance act as a mediator, however I do not see anything in law that likewise prevents the labour officer from so acting. The only challenge is the lack of a mechanism unless the conciliation mechanism is also adopted.

The Industrial Court Act recommends the resolution of disputes through alternative dispute resolution mechanisms. Section 15 of the Act says that nothing stops the Industrial Court from implementing or adoption alternative means of dispute resolution. The court can also refer a matter for mediation, conciliation or arbitration if satisfied that there has been no attempt at resolving the dispute before resulting to Court.

Alternative dispute resolution is not mandatory, it is voluntary. Nevertheless parties need to show is that an attempt was made. Therefore parties may engage in such a process with no real intention of settling the dispute. The ultimate solution is to make ADR mandatory. However it should not be mandatory in all disputes. For instance disputes on the interpretation of the law should be left to the court. But disputes on whether a certificate of service was issued, whether the terminal dues were as per provided in the law and other minor disputes should be settled through ADR.

Therefore a structured system of rules for resolving such disputes should be formulated where parties can themselves resolve the dispute without reference to court. Once settled, the parties may be required to file the consent with the registrar. Labour officers should be given more latitude and training to facilitate ADR. The Industrial Court will be left to decide more complex cases. Nevertheless it should also be mandatory for the parties to address the court as to why the dispute cannot be resolved through ADR mechanisms. If convinced the court should go ahead and hear the matter expeditiously but if dissatisfied, it should give a time-line within which parties should have resolved the dispute. The main reason why parties do not sometimes take ADR seriously is because they know that even if they do not agree, the Court will eventually resolve the dispute. But if parties are told, ‘you either resolve the dispute through ADR or sanctions follow’ then parties would be more willing to take the process seriously.

I hope that policy makers in the judiciary can give serious thought about making ADR the preferred dispute resolution method for minor industrial disputes. In the long run, a lean compromise is better than a fat law suit.

Tuesday, September 16, 2014

The President's leadership needed to Build Kenya's Culture

On Monday last week, President Kenyatta was heckled in Migori. Well I don’t mean to delve into the politics of the incident. However it emerged that a section of the crowd may have been paid by a member of Parliament to disrupt the President’s address. Now this is the subject of our sharing today.

One question that many people have struggled to answer is how to transform Kenya. What will it take to have a just country with peace, love and harmony among its citizens as they individually and collectively pursue the development agenda. How can we eradicate corruption, tribal animosity, injustice, poverty and disease in Kenya? How can Kenya cease from being a nation of haves and have-nots to one where all people can access opportunities equally and fairly?

I believe that the solution rests in redefining our culture. Article 10 of the Constitution has Kenya’s national values and principles of governance. They include patriotism, national unity, rule of law, participation of the people, human dignity, social justice, inclusiveness, integrity, transparency, accountability and sustainable development among others. This is the closest the law comes to defining our culture. However the most important question is whether these values are practiced in our day to day lives. Do we act justly and treat others with dignity? Are we transparent and accountable in our undertakings?

A quick glance at how we engage reveals that Kenya is far from living by these values. We are rarely our brother’s keeper. The ‘me-myself and I’ syndrome has consumed us fully well. This is the issue the President Kenyatta should put more emphasis. The President should consider using his position and authority to re-define Kenya’s culture. This task has been largely left to the political class who until now continue to hold the nation at ransom. 

The President, as he has committed to, should continue rising above partisan politics and help Kenya define itself differently. This is now even about President Kenyatta’s re-election in 2017, it is about leaving a lasting legacy that will be remembered by generations to come.
President Kenyatta has done well in positioning Kenya as an investment hub and diplomatic pillar in Africa. However his real legacy will be in leaving a more united country where your name, tribe and place of origin do not matter. 

While the President’s father heralded Independence from colonial masters, President Kenyatta must herald liberation from tribalism, corruption and partisan politics. In doing so the President will help Kenyan’s define their culture that will be resident in their hearts and minds and felt in all undertakings.

Friday, September 5, 2014

Why SMEs need Labour Law Due Dilligence

One of the vexing issues for any employer in the Kenyan economy is employee management. By this I mean managing the process of hiring and retaining employees who make a positive contribution towards realizing the goals of the company. Large corporations are largely affected by issues like strikes and go slows and the government has also been vexed by strikes in the education and health sectors.
Inevitably a large part of employee management is tackled through labour laws. The law provides on how an employee is hired, the employment contract, terms and benefits and cessation of employment. A brief highlight of the key laws is important.

The employment Act has provisions that regulate the relationship between employer and employee including the minimum terms and conditions of employment such as the terms of an employment contract, appointment, benefits including leave, termination and others. The Employment Act also has provisions on resolution of disputes between parties to an employment contract. The Labour Relations Act on the other hand has provisions governing the registration and regulation of trade unions. The Act allows collective bargaining and therein provides for the manner of negotiating Collective Bargaining Agreements. It also has provisions on dispute resolution between trade unions and employers.
The Occupational Health and Safety Act and the Work injury Benefits Act have provisions aimed at protecting employees while at work. They provide for measures geared towards making the work environment safer and has provisions on adequate compensation in the event of work injuries. The Industrial Court Act on the other hand establishes the Industrial Court, pursuant to the Constitution. The Court has jurisdiction to resolve labour disputes between employers and employees. 

There are a host of other legislations that affect employer-employee relations such as the National Social Security Fund Act. Subsidiary legislations such as the annual minimum wage will also influence this relationship. Policy measures by the government in various spheres such as immigration will impact the relationship. Lastly as County Governments enact more legislation, some laws are expected to impact the employment relationship.

On the above analysis, it is important to have Small and Medium Enterprises invest in labour law due diligence and this is why. SMEs normally start operations with a minimum work force who are easily managed. In most cases a human resource department is not considered necessary, it’s an increased cost. As SMEs grow and thrive, employee-relations dynamics also evolve in a larger magnitude. Employees will feel entitled to a larger piece of the pie if profits are growing. At the same time an employer cum entrepreneur is also thinking of how to grow the company and reinvest earning into the business so that the company has a firm foundation for continued growth.

Due diligence is taking necessary steps to comply with the law. Labour law due diligence is therefore important since SMEs need to understand the laws that affect them in the present and those that

Tuesday, August 26, 2014

US-Africa Summit: The gaps and a response by AU

The United States recently hosted African heads of state and government for a summit dubbed the US-Africa Leaders Summit. It was a fist of its kind, themed “Investing in the next generation”. The summit focused on cooperation between Africa and the US in such areas as energy, health, climate change, developing youth leadership, security and counter-terrorism. These subjects were discussed in the context of enhancing trade and investments between Africa and the United States. Democracy and human rights protection also a focus of the summit, in this regard the summit focused at deepening co-operation in promoting democratic institutions in Africa and adherence to human rights.

Previously we have not seen such a robust attempt by the United States to woo African investments through strengthening trade ties. The relationship between Africa and the US has largely been perceived to focus on good governance and human rights. However through the Summit the US confirmed that it does not want to be left behind by such countries as China and India who are already a large part of the African investment and trade Renaissance. As this focused attention on African resources grows, we must not lose sight of the central role of human rights and good governance in trade and investments.

On the actual part that human rights occupies in trade and investments, two schools of thought have emerged. The first school views human rights compliance by governments and corporations engaging in trade as a critical factor. The second school views human rights and trade as separate fields which are provided for and regulated under separate regimes of international law, it thus draws a distinction between international human rights law and international trade law. Nevertheless, even as we engage in this debate, we must think of the actual impact that trade has on society generally. Such focused thinking will inevitably lead us to incorporate human rights, labour rights and environmental rights in the investments agenda so that sustainable development is attained.

Why do I link both concepts? Some of the challenges, we struggle to fight in Africa are corruption, mismanagement of state resources, ethnic-based politics and unemployment among others. While these issues are not unique to Africa, we should admit that they have played a big part in Africa’s economic and political stagnation. These challenges have had an impact on the rate of growth of our economies and when examined keenly, they revolve around human rights based governance, labour advocacy and environmental governance. International investors cannot therefore ignore these aspects if Africa is to truly going to achieve the theme of the summit ‘Investing in our next generation’. This means that investors will engage in ‘responsible investing’ so that multinational corporations in addition to complying with international trade rules, government regulatory benchmarks it must also comply with human rights, labour standards and environmental rights.

To demonstrate this point lets now coming on Kenya. The United states expressed interest in investing in the energy sector. Kenya is still at the initial stages of exploring oil in Turkana and when drilling and production commences, human rights concerns will distinctly come to the fore, is we take lessons from Nigeria. However there lacks a sector-based policy and legislation that are in tune with the Constitution of Kenya 2010 that entrenches economic, social cultural and political rights. The country therefore needs a robust legislation to govern the exploration of oil taking care of the rights of all stakeholders chief among them rights of communities affected by the exploration and adherence to environmental standards.

The African Union should be on the forefront in providing African countries with a common approach to investments in Africa. As interest in Africa grows, Africa must be able to speak with one voice, this will give the continent leverage in trade negotiations. Such a forum must be created urgently to allow Africa have a win-win trade and investment forum. The AU should also facilitate the development of curriculum to raise awareness among the youth particularly on the investment opportunities in various African countries so as to see more inter-Africa growth and development. A framework for incorporating human, labour and environmental rights in trade and investment agreements should also be developed by the AU to provide focused guidance on the ‘responsible investing’.

Finally is a challenge to Africa. China, US, the European Union, France and other developed countries have all shown great interest in Africa. African countries must be equally aggressive in developing policies and legislation to shepherd investments in Africa and safeguarding our national and collective interests. Respective governments should envision Africa in fifty years and continue building a firm foundation that will help us ‘invest in the future African generations’. In Kenya for instance, the Vision 2030 is such a blue print and it must therefore continue to inform our bilateral trade engagements.

Friday, June 20, 2014

Lets adopt Best Labour Pratice During Impeachment

One of the current debates in our nation for members of the executive at the County and National levels of government is the question of impeachment. Two governors have been impeached by their respective assemblies and most importantly, a cabinet secretary is now facing an impeachment motion. Broadly speaking, ‘to impeach’ is to bring an accusation against someone through an appropriate tribunal. However the Constitution talks of ‘dismissal’ not ‘impeachment’.

One of the missing link in the impeachment of cabinet secretaries is the blatant disregard of best practices in handling employee affairs. Often political considerations overpower objectivity. As regards cabinet secretaries, they occupy a constitutional office by virtue of Article 152 of the Constitution. Cabinet secretaries are employees of the National Executive and are accountable to the President collectively and individually by virtue of Section 9(2) of the National Government Coordination Act. On the other hand they also occupy an office that attracts huge political interest and oversight from the national assembly. They are for instance are appointed on approval by the national assembly and can likewise be dismissed by the President or through the national assembly.

Article 152 (6) - (10) of the Constitution has an elaborate procedure for appointment and impeachment of a cabinet secretary. As for impeachment, a member of the national assembly may propose a motion to dismiss a cabinet secretary for violating the Constitution, committing an international crime or gross misconduct. If approved by a third of the members, a committee is formed to investigate. In carrying out such investigations, it is expected to afford the cabinet secretary an opportunity to present a defence. The committee can either find the allegations to be substantial or unsubstantial. If substantial, the cabinet secretary is given an opportunity to be heard (presumably in the national assembly) after which a vote is taken on a resolution to dismiss the cabinet secretary. If the motion is supported by a majority, the cabinet secretary stands dismissed.

However if you examine the manner in which the national assembly has been conducting the impeachment process, it raises a critical question. Are best practices in labour law practice on dismissing employees are adhered to? For illustration purposes, let’s take a cabinet secretary to be an employee of the national executive. Is a cabinet secretary accorded a fair chance to be heard? What is the best labour law practice in handling impeachment of cabinet secretaries? Are there any benchmarks so as to ensure that political witch-hunt is well checked? Who enforces these standards? These and any others are the questions that the process being undertaken by Parliament raises.

The national assembly can borrow benchmarks from the procedure of dispute resolution in strictly labour disputes. This procedure is provided under the Employment Act and Labour Relations Act. In a nutshell, once a dispute arises within an employment relationship, it is placed before a conciliator. The conciliator listens to both parties, establishes whether there is a dispute and gives a decision on how best to resolve the dispute. If parties fail to agree, the parties can still go to the Industrial Court. However the Industrial Court can still ask parties to attempt settling the dispute through alternative means including conciliation, negotiations, mediation or arbitration. Once these mechanisms fail, the Court will inevitably render its decisions, which parties must obey. If dissatisfied, one can always appeal. In doing all these the Court will seek to ensure that an employee is accorded a fair hearing. Meaning an employee should have a date with his/her accusers and give a response to every allegation. If an employee is not accorded this chance, then the decision may be declared invalid.

The position of cabinet secretary is both a constitutional office. However, it is still in the best interest of the country for the national assembly to adopt a procedure that guarantees the rights of a cabinet secretary against whom allegations are made. This will ensure an objective criterion is adopted in determining for instance what amounts to gross misconduct. The means of arriving at a decision must be seen to be fair and just and not an attempt to settle political scores. The national assembly should be innovative in applying Article 152 of the Constitution so that cabinet secretaries are assured that they have the blessings to govern their dockets without the fear of facing impeachment.

Sunday, May 4, 2014

Breakfast In The Street

Hey friends, everyday im in the Nairobi C.B.D at about 6:30 am. Cant help but notice the many street families sleeping besides shops as we briskly walk to work.

So on 2nd June 2014, im having breakfast with street families and reminding them that God loves them and has a great life ahead of them. With Kshs 50/- we can give a surprise breakfast to the families. You are welcome to join the train.

In the end we shall explore ways of meaningful long term impact and transformation.

Good day.

Thursday, April 24, 2014

Extending Wage Bill Debate to Private Sector

Hi all,

See the link to an opinion piece i wrote for the business daily on extending the wage bill debate to the private sector. I briefly highlight the need to rethink the traditional annual minimum wage increment.

Let me know what ideas you think the government and the private sector should implement to reduce the wage bill.

Tuesday, March 4, 2014

New Look

You may have noticed that we have i made any publications this year.

On January 1, 2014 i made a resolution that this year i will do things differently. The realisation that we only live once should motivate us to utilise all our talents, embrace new ideas and take new risks. I committed to embrace new ideas, use technology in new ways, impact and serve with more dedication. I am still on course to realise this goal.

So the silence is not intentional, I have been putting together a few ideas which will be unveiled soon. Its the process of #MindShift.

Feel free to share ideas on how we can make this blog better, how we can better impact and serve through writing.

May you realise your resolutions for 2014 and beyond.