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.