Litigation Aspect

‘‘My boss just called me to her office and said that we needed to talk. As soon as I walked in, she greeted me and told me to have a seat. I didn’t think it was anything serious and then I got to learn that I was being terminated from employment.  All I can remember was that my final dues would be remitted to my bank account. It was a nightmare. I had worked all night and day for a week on a marketing project for a high profile client. It just felt wrong, it wasn’t making sense. I knew for a fact that I had successfully carried out my job well during my three year stint with the marketing agency. The most unfortunate thing is I didn’t understand why I was terminated: I was not given an opportunity to justify my hard work or seek a reasonable explanation for my untimely exit from the firm. I knew that there was something wrong so I hired a lawyer who pursued my claim against the marketing firm for unfair termination in Court. The Court entered judgment in my favour, I was not afforded an equitable hearing and the grounds of termination were indeed unfair. The Court awarded me a month’s salary in lieu of notice and 12 months’ salary as damages for unfair termination plus costs of the suit.’’

Sadly that is one among the many trending stories of unfair/ wrongful termination of employment in Kenya today.  It dawns on us (both as employees and employers) that the labour law is taking shape, fast.  Individuals have increasingly become aware of their rights hence the recorded increase in labour cases at the Employment and Labour Relations Court[i] . In Nairobi alone an estimate 500 cases were filed in 2010 and 2000 filed in the year 2014. A cursory look at the judicial stations around the country will confirm an increase in litigation matters relating to employment and labour relations issues. Could this be a sign of appropriate implementation of the labour laws or an indication of employees and employers increasingly knowing their rights and obligations under the law?

Constitutional Foundation:

At a foundational level and as part of the judicial reforms, the Employment and Labour Relations Court was established under Article 162 (2) (a) of the Constitution of Kenya 2010 (promulgated on 27th  August 2010), for the purpose of settling employment and Industrial relations disputes and the furtherance, securing and maintenance of good employment and labour relations in Kenya. A quick recap on the statutes that govern the employment and labour law practices include, Industrial Court Act[ii], the Employment Act[iii], Labour Relations Act[iv] and Labour Institutions Act[v]. By enshrining the Employment and Labour Relations Court in the Constitution it has enhanced enforcement of the right of equality and freedom from discrimination, protection from slavery, servitude and forced labour, and right to fair labour relations practices.  Some employers have also taken it a notch higher and in further support of the statutory provisions hereinabove, have created internal human resource employee manuals/ handbooks and policies to provide guidance and clear terms of fairness and accountability at their respective workplaces.

Trade Unions:

The Labour Relations Act defines a trade union as “an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers’ organization[vi]. We have witnessed various trends amongst the Trade Unions. Trade unions have evolved over the years and appear to become less militant- we are reminded of the year 1998 when the country was marred with a series of strikes such as the Kenya Bankers’ strike in March 1998 which almost paralyzed the banking sector and the Kenyan economy at large for an estimated 14 days, and the Kenya National Union of Teachers strike in October 1998 that went on for about a month and which brought the education sector to a standstill amidst the commencement of the national examinations for the Kenya Certificate of Secondary Education. The underlying issue was that whilst the law was clear on strikes there was a level of impunity in implementing strikes despite them being declared illegal by the then Ministers of Labour  in the aforesaid eras. Does this mean that the Trade Unions have appreciated and accepted the labour law practices as they are now?

As opposed to the past experiences, today, negotiations between employers and employees in the event of strike do not take as long as they used to. There are fewer protracted stalemates. Presently, the only strikes that have maintained their past demeanor are mainly those that involve the government as the employer, as was seen in the recent nationwide teacher’s strike by the Kenya National Union for Teachers. Notably, the Labour Relations Act has facilitated collective agreements- for better working terms- and provided for prohibited strikes and lock-outs[vii] which would explain the decline in the strikes by employees in various sectors.

Child Labour

Glaring traces of worst type of child Labour still continue to haunt the Kenyan society to date even over fifty (50) years since the country attained its independence. It includes child involvement in work such as herding, fishing, production of charcoal, quarrying, making bricks, sand mining, domestic helpers, street begging and hawking, recruitment to ethnic militia’s and extremist groups, drug trafficking and child prostitution, amongst others. The changing political, economic and cultural environments have a huge role in its existence. More particularly, increase in poverty levels, changing family values and lack of educational facilities are among the major factors that contribute to the worst form of child labour. It should however be noted that child labour is not in the strict sense prohibited however it has to be controlled to ensure that children do not start working at a very young age and are not exposed to hazardous work – work that can jeopardize their safety, physical, mental and moral health.

Kenya has ratified the International Labour Organisation Convention No. 138 on the minimum age for admissions to employment and work which sets out the minimum age as follows:

  1. Hazardous work: Minimum age is 18 (16 under strict conditions)
  2. Basic Minimum age: Should not be below the age for finishing compulsory schooling and in any case not less than 15.
  3. Light work: Children between the ages of 12-14, as long as it does not threaten their health and safety, or hinder their education or vocational orientation and training.

There is a growing concern amongst corporate and business entities to maintain their image and reputation whilst carefully tackling the issue of child labour in their supply chain. It is in this premise that the aforesaid entities now seek to adopt the use of the United Nations Guiding Principles on Business and Human Rights, as endorsed by the UN Human Rights Council in June 2011[viii], to provide guidance on how they can prevent child labour and contribute to child labour remediation, whether in their own operations or in their supply chains, through appropriate policies, due diligence and remediation processes.

The above three sub-topics provide highlights of some of the top emerging trends in the labour sector. The potential increase in litigation could in some quarters be deemed to be a negative development since it appears to make the labour sector difficult. On the contrary, it ought to be looked at as a positive development since it strives to protect the interests of employers and employees, bring structure which and in the long run creates conducive working environments. Ultimately, better employment and labour related structures are created and work policies get more standardized which can only have beneficial a spill-over to the wider economy.