Employment in Kenya is regulated by the Constitution, the Employment Act, 2007, the Labour Relations Act, 2007, the Labour Institutions Act, 2007, the Work Injury Benefits Act, and the Employment and Labour Relations Court Act. These laws establish the Employment and Labour Relations Court (ELRC), which has original and appellate jurisdiction over employment disputes.
Jurisdiction of the ELRC
The ELRC hears disputes involving:
- Employers and employees
- Employers and trade unions
- Employers’ organizations and trade unions
- Disputes between trade unions or between employer organizations
- Disputes between trade unions and their members
- Disputes over the registration and election of trade union officials
- Registration and enforcement of collective agreements
Remedies Available in Employment Disputes
The Court has the authority to issue various remedies, including:
1. Interim Preservation Orders (Injunctions)
These orders maintain the status quo pending the final decision. They may require an employer to keep an employee at work or prevent employees from engaging in industrial action before the dispute is resolved. The goal is to ensure that the court’s final ruling is not rendered ineffective by changes in circumstances.
2. Prohibitory Orders
These orders prevent a party from taking certain actions, such as stopping an employer from terminating an employee or halting a recruitment process.
3. Specific Performance
This remedy compels a party to fulfill contractual obligations where monetary compensation is inadequate. It may be used to require an employer to improve working conditions or pay an employee as per their contract. However, courts rarely issue such orders due to the potential for strained employer-employee relations.
4. Reinstatement
This order requires an employer to reinstate a dismissed employee, provided the termination occurred within the last three years. Courts are cautious about issuing reinstatement orders, especially in the private sector, due to the likelihood of a hostile work environment.
5. Declaratory Orders
These court proclamations determine whether an action was lawful or unlawful. For instance, a court may declare an employee’s termination unfair, leading to further orders on compensation or reinstatement.
6. Compensatory Orders
The court can award compensation based on factors such as length of service, employee preferences, and circumstances of termination. Under Section 49 of the Employment Act, remedies for wrongful dismissal or unfair termination include:
- Payment in lieu of notice: Compensation for the notice period required under the law or employment contract.
- Severance pay: Given when an employee is declared redundant, calculated at a minimum of 15 days’ pay per completed year of service.
- Payment for accrued leave days: Employees are entitled to payment for unused leave days.
- Overtime pay: Compensation for work beyond contractual hours, including work done on public holidays.
- Compensation for unfair termination: Up to 12 months’ salary may be awarded for wrongful dismissal or unfair termination.
- Wages for days worked: Employees terminated before month-end must be paid for the days worked, in addition to payment in lieu of notice.
7. Damages
The court can award damages in cases such as:
- Sexual harassment or discrimination
- Workplace injuries
- Expenses incurred for the employer’s benefit (e.g., relocation costs)
- Damage to an employee’s reputation affecting future employability
Court Costs
The court may order the losing party to bear the costs of the suit or require each party to cover their own legal costs. In some cases, no cost orders are issued.
Conclusion
The Employment and Labour Relations Court plays a vital role in protecting the rights of both employees and employers. It ensures that employees receive redress for unfair treatment while compelling employers to maintain fair and lawful workplace practices.
