Tuesday, August 11, 2015

Post GES 2015 : The security, investments and labour relations interplay


Kenya successfully co-hosted the Global Entrepreneurship Summit whose focus was entrepreneurship and economic growth. At the centre this effort is the government’s goal to create an environment where more jobs can be created especially for the youthful population. As more jobs are created, there will emerge more complex relations between employers and employees. Kenya has in the recent past witnessed disruptive-industrial-actions mainly in the education and health sectors. The unrest in the education sector has partly been contributed to by the threat of terrorism particularly in the northern part of Kenya. These are important events that the private sector should also endeavour to learn from. But for today let us focus on dispute resolution in the employment and labour sector and role of the judiciary through the Employment and Labour relations Court. The question, is how can the Court provide a pro-active approach that will bring stability to the labour relations even as the government continues to tackle terrorism?

History of the Employment and Labour Relations Court
Article 162 (2) (a) of the Constitution of Kenya established a specialized Court to deal with all employment and labour relations matters. This was codified through the Industrial Court Act 2011. This court has most recently changed its name to the Employment and Labour Relations Court with the status of the High Court. The Court is presided by a presiding judge and has judges who have the same status as high court judges.

The new court has witnessed two major changes. First is an extended jurisdictional scope which has been addressed with finality through precedents. It is now settled that the Court can also handle petitions for enforcement of fundamental rights and freedoms and judicial review applications. However current jurisprudential developments are interrogating the question whether judges of the employment and labour relations court can hear and determine criminal matters for instance.  Such matters would have to be within the purview of enforcing labour rights. Simultaneously with the extended jurisdiction has been the hiring of judges of the Court and decentralization of the Court to various stations in Nairobi, Mombasa, Kisumu, Nyeri and Nakuru hence devolving its reach by litigants.

Employment and Labour relations disputes in the wake of insecurity
In light of the security onslaught in the Country, the most affected group of people is employees. Teachers have for instance declined returning to their work stations, the Teachers Service Commission advertised their positions afresh (see the TSC website www.tsc.go.ke for a copy of the advertisement). The impulse is yet to be resolved. The employer-employee relationship has been greatly affected. This has also affected County Governments and private businesses. The response by the TSC largely signifies the response public institutions make towards insecurity. Whereas employees are concerned about their security, employers are concerned about the sustainability of their enterprises.

Amidst this, the Court continues to face the emerging challenge of back log of cases. Hypothetically, if the current statistics of cases filed in the Court are anything to go by, the Court will have serious challenges in the near future. In 2012 the Court had a back-log of 4,033 cases which if shared among the 12 judges of the Court, each judge would handle 336 cases (see the state of the Judiciary Report 2011 – 2-12). Presently, with over 2,300 cases filed in the Nairobi registry alone, securing hearing dates for urgent cases is close to impossible.

The Solution
So what is the most effective response by the employment and labour relations court to insecurity?

The solution lies in the application of Alternative Dispute Resolution Mechanisms by the employment and labour relations Court to stem the negative response to insecurity by employers and employees. Rather that resulting to litigation, the Court should embrace structured ADR to resolve such impulses. Kenya can borrow from the United Kingdom justice system that has a well-structured ADR mechanism through the Advisory, Conciliation and Arbitration Services.

Structured ADR is ideal since it will help preserve the relationship between employers and employees but also safeguarding their interests. Embedded in this proposal is a call to embrace a habit of dialogue rather that aggressive contests. If this is done within the Employment and Labour Relations sector, the number of disruptive industrial unrest will be greatly reduced which inevitably leads to greater gains for the economy.

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