A large number of claims that worker filed at the Employment and Labour Relations Court registry reveal the reality of the unevenness in the relationship between Employees and Employers in Kenya.
Summary dismissal, unsafe working environment, harassment and withholding of wages are just but a few of the problems that employees face in the hands of unreasonable employers.
However, while some employees know and understand their rights, some hardly know the avenues and institutions through which to pursue such claims.
In Kenya, The Employment and Labour Relations Court handles industrial and labour related disputes.
This court is established under Article 162(2) of the Constitution to settle employment and industrial relations disputes besides securing and maintenance of good employment and labour relations.
It is a superior court of record with the status of the High court.
The court was established pursuant to the Employment and Labour Relations Court Act. The Employment and Labour Relations Court (Procedure) Rules guide the courts operations, 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 a bid to ease cases backlog in the court, the Chief Justice, in a gazette notice, directed that claims involving a salary falling below KSh. 8,000 can be lodged in the Chief Magistrate’s court.
Employment disputes that the court can hear include unfair dismissal, redundancy, discrimination claims and rows arising from trade union membership.
Here are some of the commonly asked question on the operation and jurisdiction of the Employment and Labour Relations Court:
When can one lodge a claim in the 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 right.
Whether you can make a claim depends on what your problem is about or meet certain conditions, for example, time limits.
The limitations of Action Act provides that claims arising out of a contract must be filed within 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 legal representation is as important as lodging a successful claim.
An advocate advises you on whether you have an actionable claim with reasonable chances of success, you meet the conditions to make the claim or there is sufficient evidence to support the claim.
Similarly, an advocate will evaluate your employer’s response and advise on the possible outcome should the matter proceed to full hearing and determination.
Although the labour laws largely protect the employee, it should not be presumed that one will always have his/her way where weak evidence is presented to the court.
Does one have to pay a fee to file a claim in the court?
Yes, but other than filing fee assessed at the respective court registries, there is no other fee payable for lodging a claim.
Does one have to pay costs?
Again just like other courts, the Employment and Labour Relations Court can make an order on payment of cost.
However, costs are not automatically as the court will only issue such an 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 its payment.
Note, however, that the consequences of filing a weak claim are 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 lodged a claim to the court and later change your mind, you can withdraw it. For example, you might decide that you do not 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 the claim by simply stating to the court that you no longer wish to pursue it.
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 case.
If you leave this decision to a 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.
Written by Oscar Onyango, an Associate at Simiyu Wekesa Advocates.
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