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.