Heritage

Understanding Employment and Labour Relations Court

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Kisumu County workers picket in the past. FILE PHOTO | NMG

A large number of claims filed at the Employment and Labour Relations Court Registry by employees reveal the reality of the unevenness in the relationship between Employees and Employers in Kenya.unlawful dismissal, unsafe working environment, harassment and withholding of wages are just but a few of the problems employees are faced with in the hands of unreasonable employers. But while a number of employees know and understand their rights, some hardly know the avenues and institutions through which such claims can be pursued.

 

In Kenya, employment and labor related disputes are handled by the Employment and Labour Relations Court. The court is established pursuant to Article 162(2) of the Constitution of Kenya 2010, for the purpose of settling employment and industrial relations disputes besides furtherance, securing and maintenance of good employment and labor relations in Kenya. It is a superior court of record with the status of the High court. The establishing Act is the Employment and Labour Relations Court Act. Its operations are guided by the Employment and Labour Relations Court (Procedure) Rules, which were formulated, vide section 27 of the Employment and Labour Relations Court Act of 2014.

 

Nearly all cases about employment are heard in the Employment and Labour Relations Court, however, for administrative purposes and in order to ease the case backlog in the Court, the Chief Justices through a gazette notice directed that claims where the subject matter is a salary falling below Eighty Thousand Kenya shillings can be lodged in the Chief Magistrate’s court. Employment dispute that can be heard by the court includes but are not limited to unfair dismissal, redundancy, discrimination claims and disputes arising from trade union membership.

 

Below are some of the commonly asked question with regard to the operation and jurisdiction of the Employment and Labour Relations Court;

 

When can one lodge a claim in the Employment and Labour Relations Court? When you have a problem with your employer that you want to take to the employment court, it is called filing a claim. A claim can either be lodged through a statement of claim or a petition. The court also has jurisdiction to hear constitutional matters arising out of an employment dispute such a breach of a constitutional right.

 

Whether you can make a claim depends on what your problem is about and whether you meet certain conditions, for example, time limits. the limitations of Action Act provides that claims arising out of a contract must be filed within a period of six years from the time a dispute arises, any claim lodged after the statutory limitation would certainly face a challenge.

 

Is it possible to act in person? Just like any other court a claimant can choose to act in person. However, the advantage of having a legal representation is as important as lodging a successful claim.  If you have a legal representation you will be advised on whether you have an actionable claim with reasonable chances of success, whether you meet the conditions to make the claim and whether there is sufficient evidence to support the claim. Similarly, they will evaluate your employer’s response and advise on the possible outcome should the matter proceed to full hearing and determination. Although the employment and labor laws largely protects the employee, it should not be presumed that an employee ill always have his way where weak evidence is presented to court.

 

Does one have to pay a fee to file a claim in Employment and Labor Relations Court? Yes, but other than filing fee assessed at the respective court registries, there is no any other fee payable in respect to lodging a claim in the courts.

 

Does one have to pay costs? Again just like other courts, ELRC can make order on payment of cost. However, costs are not automatically as the court will only issue such order where the successful party had requested for the same. If the employer does not pray for cost in his pleadings, the court will not order for the same to issue. Note however, that the consequences of filing a weak claim is that you may have to pay your employer’s legal costs if you lose the case and your legal representative, depending on what you agreed beforehand. If your claim involves a breach of contract your employer can, if appropriate, bring a counterclaim against you.

 

Can one withdraw a claim filed in the Employment and Labour Relations Court? If you have lodged a claim to the court and since changed your mind, you can withdraw your claim. For example, you might decide that you don't want to carry on your case because you feel that you may lose or you have reached a settlement with the employer.

 

You can withdraw by simply stating to court that you no longer wish to pursue the claim. The court may then record consent for settlement but you need to be careful about the timing. The best time to make this decision is when you know how your employer’s case is going to be and you can think about the strengths and weaknesses of your own case. If you leave this decision to later date, after your employer has spent a lot of money dealing with your claim, you may be at risk of having to pay costs.