THE PLACE OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS IN LABOUR AND EMPLOYMENT DISPUTES
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Abstract
Alternative Dispute Resolution (ADR) mechanisms have a
significant role in labour and employment disputes within the Kenyan context.
There is a need to emphasize the impact of human resources
as a crucial asset in the workplace, necessitating the need for fair and just
labour practices. Various international and Kenyan legal frameworks, such as
the International Labour Organization (ILO) standards and the Kenyan
Constitution call attention to the protection of labour rights, the promotion
of collective bargaining, and the establishment of courts for labour-related
disputes.
We delve into alternative dispute resolution methods as
recommended by Article 159 of the Kenyan Constitution and their contribution in
the labour and employment field. Particularly, we capture the prevalence of the
use of mediation, as an ADR mechanism in this particular field. We also
underline its ability to facilitate open communication and negotiation as well
as its non-binding characteristic. Although Kenya lacks a specific mediation
framework, institutions like The Chartered Institute of Arbitrators (CIArb) and
The Dialogue and Dispute Resolution Institute (DDRI) have curated guidelines on
the same.
Conciliation, another example of a non-binding ADR
mechanism, and arbitration, a binding ADR mechanism, are also discussed. The
Arbitration Act of 1995 governs arbitration in Kenya, providing a legal
framework for conducting and enforcing arbitration proceedings.
The advantages of ADR mechanisms over court settlements in
labour disputes are highlighted, for instance, the preservation of
relationships, reduced court backlogs, privacy, and cost-effectiveness.
However, the document acknowledges that mediation's non-binding nature may
sometimes necessitate combining mediation with arbitration to ensure
enforceable outcomes.
In summary, this document underscores the vital role of ADR
mechanisms in labour and employment disputes in Kenya. It serves as a valuable
resource for understanding the legal and procedural aspects of ADR and its
impact on labour relations in the Kenyan setting.
v
INTRODUCTION
For any established organization to function, the presence
of assets or resources such as human resource, raw materials, monetary
resources and capital is fundamental and of critical importance.[1]
Nonetheless, the most imperative of these is human resource, every so often
referred to as labour.
F.W. Taylor’s scientific management theory, Max Weber’s
bureaucratic management theory and Henry Fayol’s administrative management
theory as well as other theories of the pre-classical and classical era of
management depicted work as the most important feature of an organization.
However, the advent of the neo-classical era shifted the focus to the workforce
and elevated the status of vitality of human resources in an organization.
“Human resource isn’t a thing we do, it’s the thing that runs our business,”-
Steve Wynn, Wynn Las Vegas.
With this development, law has been enacted and institutions
established over the years to protect, safeguard and defend the interests of
labour. One major institution is the International Labour Organization (ILO)
founded under the United Nations, whose objective is to set labour standards, develop policies and devise
programmes promoting decent work for all women and men. The ILO Declaration on
Fundamental Principles and Rights at Work stipulates basic human values that
underpin labour relations such as issues to deal with freedom of association
and collective bargaining, safe and healthy working environment, social
security and wages.[2]
The United Nations also recognizes decent work as one of the 17 Sustainable
Development Goals. Examples of international
labour law instruments include the Protection of Wages Convention (1945), the
Protocol of 2002 to the Occupational Safety and Health Convention and the
Social Security Convention (1952).
In Kenya, the
Constitution of Kenya 2010 (CoK 2010) appreciates the impact of labour through
Article 41 in the Bill of Rights. The constitution grants every worker the
right to fair labour practices[3],
to fair remuneration, to reasonable working conditions, to go on strike and to
form, join and participate in the activities and programmes of a trade unions.[4]
This right is also enforced by Article 36 that confers every citizen with the
right to form associations of any kind,[5]and
The Labour Relations Act of 2007.[6] On
these grounds of law, many trade unions have been formed to articulate needs
like relating to labour and employment like negotiating terms of work by means
of collective bargaining, a good example being the Central Organization of
Trade Unions (COTU-K).
To address disputes between employees and employers arising
from wage and benefits allotment to discrimination at workplaces as well as
unfair termination of employment, the CoK 2010 at its inauguration empowered
the Parliament to establish courts that will hear and determine cases relating
to employment and labour relations. Following this, the Parliament founded the
Employment and Labour Relations Court (ELRC) through the Employment and Labour
Relations Court Act No.20 of 2011. Since its founding, this court has heard
masses of cases involving numerous issues of labour and employment. As a case
in point is the 2021 row heard at the ELRC at Kericho which involved the Kenya County Government Workers’ Union against the Bomet
Water and Sanitation Company Limited 2022. 42 people had been sacked after
a dispute about unpaid salaries, unpaid pensions and unremitted staff welfare
funds. The respondent, Bomet Water and Sanitation Company, failed to take up
the grievances and instead countered the employees with intimidation, threats
and victimization of the employees through termination.[7]
According to Article 159, dispute resolution is not limited
to the courts. Alternative methods of dispute resolution including
reconciliation, mediation and arbitration have been prescribed.[8]It
is in this light that organizations have resolved to the use of Alternative
Dispute Resolution (ADR) Mechanisms to patch up differences between employees
and employers. Common methods put into practice are arbitration, negotiation or
dialogue, mediation and conciliation.
v
ADR MECHANISMS IN THE LABOUR AND EMPLOYMENT DOMAIN IN
PRACTICE
Alternative Dispute Resolution mechanisms as enshrined in
Article 159(c) of the CoK 2010 are for the purpose of ensuring that there is no
delay in justice in any way due to procedural technicalities in the process of
the deliverance of justice to every citizen of Kenya.[9]
In labour disputes, the most common ADR method used is
mediation. Mediation is a voluntary process where a neutral third party, known
as a mediator, assists the parties in reaching a mutually acceptable
resolution. The mediator facilitates communication, helps identify the
underlying issues, and explores potential solutions. Mediation in labour
disputes is often used to resolve issues related to wages, working conditions,
collective bargaining agreements, and unfair labour practices.
It is keen to note that Kenya currently doesn’t have a set
framework for the practise of mediation. Mediation in Kenya relies heavily on
International Law and guidelines. There are also individual institutions that
have curated mediation guidelines currently in use in Kenya.[10]These
institutions include The Chartered Institute of Arbitrators (CIArb) and The Dialogue
and Dispute Resolution Institute (DDRI).
Other ADR methods that may be used in labour disputes
include conciliation and arbitration. Conciliation is a non-binding process
where a conciliator helps the parties reach a resolution by offering
suggestions and facilitating negotiations.
On the other hand, arbitration is a more formal process where
an arbitrator, who acts as a judge, hears the evidence presented by both
parties and makes a binding decision. Arbitration is commonly used when the
parties have failed to reach a resolution through negotiation or mediation. The
decision of the arbitrator is final and
binding. The parties in the dispute have to abide by the remedies
offered by the arbitrator.
Unlike the case in mediation and conciliation, there is law governing
the process of arbitration in Kenya. The current statute in application is the Arbitration Act of 1995. This act
provides the legal framework for the conduct and enforcement of arbitration
proceedings in Kenya. The key provisions of the Arbitration Act include:[11]
a. Scope and application: The act applies to both domestic
and international arbitrations taking place within Kenya. It governs the
enforcement of arbitration agreements, the conduct of arbitral proceedings, and
the recognition and enforcement of arbitral awards.
b. Definition and recognition of
arbitration agreement: The act defines an arbitration agreement and specifies the
requirements for its validity. It recognizes the freedom of parties to
determine the dispute resolution process through arbitration and provides for
the enforceability of arbitration agreements.
c. Appointment of arbitrators: The act provides for the
appointment of arbitrators. It outlines the procedure for selecting
arbitrators, including the appointment by the parties or by an appointing
authority specified in the agreement or designated by the court.
d. Conduct of arbitration proceedings: The act sets out the rules and
procedures to be followed during the arbitration process. It covers various
aspects such as the arbitrator's powers, the conduct of hearings, the taking of
evidence, and the awarding of costs.
e. Recognition and enforcement of
awards:
The act establishes the procedure for the recognition and enforcement of
arbitral awards in Kenya. It provides for the enforcement of domestic and
foreign arbitral awards, subject to certain conditions and limitations.
Additionally, parties involved in arbitration proceedings
may also refer to any agreed-upon arbitration rules or guidelines that
supplement the provisions of the act.
The Chartered
Institute of Arbitrators, established in 1984, is the overall body that oversees,
promotes, and facilitates the determination of disputes by Arbitration and
other forms of Alternative Dispute Resolution.[12]
v WHAT ARE THE ADVANTAGES OF THE
UTILIZATION OF ADR MECHANISMS IN LABOUR AND EMPLOYMENT DISPUTES OVER COURT
SETTLEMENT?
ADR offers a
substitute option to the normal court adjudication and traditional adversarial
approach to solving disputes in labour and employment disputes. The main
benefit that ADR has over court litigation is its ability to cancel out the
hostility between the two conflicting parties in a dispute. This allows them to
solve their wrangles without running the risk of ruining their internal
relationships.
ADR also serves
as a relief to courts in Kenya as it reduces the backlog of cases that have not
been decided. Employment and family succession disputes in Kenya are among the
class of cases that spend even up to 20 years in court awaiting determination.
A case in point is the Estate of Gideon Kilongosi (Deceased)[13], a land dispute case whose the judgment took 16 years to be reached. Justice delayed is often justice denied.
Stagnant cases are costly to maintain and would rather be directed to mediation
or arbitration. Such ADR methods
are suitable as they provide alternate creative ways to settle disputes which a
normal court would not be afforded due to lack of jurisdiction.
There is the
private nature of ADR mechanisms which comes to aid when the nature of the
labour or employment dispute may cause the company huge losses if the dispute
comes to public view. ADR mechanisms embrace privacy in proceedings and hence
protect the parties involved. Commercially sensitive disputes are brought to
ADR redress rather than court litigation to prevent huge corporations from
being embarrassed or even losing an edge over their competitors.
It is important
to note however, that mediation has one evident downside. In the event parties
fail to come to an agreement they ‘risk revealing or exposing their
underbellies’ to their opposing parties. This is because mediation is not
binding. This speaks to the fact that one party may risk disclosing very
important information to the opposing party about themselves during a mediation
session that may not bear solution. The opposing party may use this information
to their malicious advantage later, for instance during court litigation.
Nevertheless, to curb this, there have been creative approaches where parties
tend to combine the two ADR mechanisms in dispute resolution. Essentially, may
be used in the first stages of the dispute resolution and then arbitration
follows in the later stages as the neutral person offers a solution that is
abiding to the two parties and can be enforced by a court of law.[14]
Valerie Moraa and Erick Muturi are
second year students of Law at the University of Nairobi.
[1] ‘Organizational
Resources and their Utilization with Management, Money, Materials and Machines’(Hyattractions,
June 8th 2015) <https://hyattractions.wordpress.com/2015/06/08/organization-resources-and-their-utilization-with-management-manpower-money-materials-and-machines/?>
accessed 13th October 2023
[2] ILO Declaration on
Fundamental Principles and Rights at Work
[3] Article 41(1), Constitution of Kenya 2010
[4] Article 41(2), Constitution of Kenya 2010
[5] Article
36, Constitution of Kenya 2010
[6] Part II, The
Labour Relations Act 2007
[7]Kenya County Government Workers’ Union v Bomet Water and
Sanitation Company Limited [2021] ELRC 15 (2021)< http://kenyalaw.org/caselaw/cases/view/228072> accessed 9th October 2023
[8] Article 159(c), Constitution of Kenya 2010
[9] ibid
[10] ‘Overview of
Arbitration and Mediation in Kenya’; A Paper Presented at a Stakeholder’s Forum
on Establishment of Alternative Dispute Resolution (ADR) Mechanisms for Labour
Relations In Kenya, held at the Kenyatta International Conference Centre,
Nairobi, on 4th – 6th May, 2011
[11] The Arbitration Act,1995
[12] CIArb Kenya< https://ciarbkenya.org/>
accessed 13th October 2023
[13] Estate of
Gideon Kilongosi (Deceased) [2023] KEHC 23680 (KLR)
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