HOW
THE EMPLOYMENT COURT RESOLVE SECURITY RELATED DISPUTES THROUGH ALTERNATIVE
SETTLEMENT
Introduction
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.
