Celebrating a Decade of Workplace Justice: The Journey of the Employment and Labour Relations Court

By Nick Weru

In a world driven by economic growth and employment dynamics, the significance of a fair and balanced workplace cannot be understated. Enter the Employment and Labour Relations Court (ELRC) of Kenya, a judicial institution that has stood as a vanguard of workplace justice for a remarkable decade. As we commemorate this milestone, let us delve into the rich tapestry of the ELRC’s history, its transformative impact, and the challenges it faces as it continues to shape the course of labour relations in Kenya.

A Legacy Forged in Constitutional Vision

The Employment and Labour Relations Court was established by the Constitution of Kenya 2010. Nestled within Article 162(2)(a), this specialized court found its legal foundation. Pursuant to the Employment and Labour Relations Court Act No. 20 of 2011, it became a fully operational entity. Elevated to the status of the High Court, the ELRC’s significance was etched into the annals of Kenya’s legal landscape.

Yet, its beginnings go back even further. In 1964, the seeds of the Industrial Court of Kenya were sown under the visionary leadership of Tom Mboya, the then Minister of Labour, and notable labour relations advocates and social partners like the Central Organisation of Trade Unions (COTU) and the Federation of Kenya Employers (FKE). This nascent institution began as the Industrial Court of Kenya under the Trade Disputes Act. It was presided over by a single judge, aided by members appointed by the Minister of Labour, alongside assessors from COTU and FKE. It was the first step toward recognizing the pivotal role of labour in the growth of an economy.

The Winds of Change: A Transformative Decade

The journey of the ELRC is intertwined with the evolution of labour laws and their interpretation.

In 2002, the then Attorney General, Amos Wako, appointed a task force led by Justice Saeed Cockar, to examine and review the nation’s labour laws and make recommendations. The Cockar Taskforce set in motion a cascade of reforms that redefined the labour landscape. This transformation culminated in landmark legislation in 2007, including the Employment Act and the Labour Relations Act, breathing new life into the realm of employment and labour relations.

The Industrial Court of Kenya, bolstered by the constitutional breeze, was bestowed the status of the High Court. Its specialization became a cornerstone and a testament to the realization that labour disputes demanded a nuanced approach.

Championing Employee Rights: A Decade of Legal Precedents

The true measure of the ELRC’s impact can be gauged through its decisions that have set enduring precedents. In the legal sphere, these decisions have paved the path for fair treatment and justice in workplaces across Kenya.

Most recently, in the case of Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) [2021] eKLR, the Court embarked on a revolutionary journey of its own. A three-judge bench of the Court extended Employment Act protections to probationary employees, not only upholding the rights of these individuals but also reaffirming its commitment to justice for all.

The Court has also been at the centre stage in upholding the Constitution of Kenya, 2010 as illustrated in the case of Okoiti & another v Koome (Inspector General National Police Service) & another; National Police Service Commission & 2 others (Interested Parties) (Constitutional Petition E101 of 2023) [2023] KEELRC 1552 (KLR) (22 June 2023) (Ruling) filed in opposition to allegedly unilateral actions by the Inspector General of Police. In a bold move, the Court issued interim orders that halted the unilateral promotion of 514 police officers, asserting the supremacy of the Constitution in matters of government appointments.

Maintaining a delicate balance of interests is crucial within the realm of labour relations. The Court has consistently played a pivotal role in resolving complex employment disputes. A recent case, Kenya Airways PLC v Kenya Airlines Pilot Association (Cause E774 of 2022) [2022] KEELRC 13126 (KLR) (8 November 2022), illustrates this point. The Court’s involvement stemmed from a labour dispute that led to a strike by Kenya Airways pilots. In response, the Court issued a clear directive, ordering the pilots to return to work. The Court asserted that it was seized of the matter, and parties were ordered to refrain from prosecuting the matter through the media and in the public gallery. Instead, the Court emphasized the need to entrust the case entirely to its proceedings going forward, thus resolving the stand-off.

Challenges and the Road Ahead: Upholding Justice Amidst Backlogs

No journey is without its challenges, and the ELRC’s path has not been immune. A burgeoning caseload has translated into a backlog of employment and labour disputes, presenting a formidable obstacle. In response, Chief Justices have acted proactively. In 2018, Chief Justice Emeritus David Maraga extended the jurisdiction of Senior Resident Magistrates and above to tackle cases where an employee’s gross salary does not exceed Kshs. 80,000. This innovative move widened the accessibility of justice, echoing the ELRC’s commitment to delivering justice across all strata of society.

The current Chief Justice Martha Koome, on her part, has underscored the need to address the backlog head-on. In a call to action during the installation of the Court’s current Principal Judge, Justice Byram Ongaya, in July 2023, she urged the ELRC judges to devise strategies and interventions to expedite case resolutions. It’s a rallying cry that underscores the collective determination to surmount challenges and ensure justice prevails.

A Decade of Dedication: Celebrating Progress and Envisioning the Future

As the ELRC commemorates a decade of existence, its journey is a testament to the power of specialized legal institutions. It has been over five decades of transformation, from a single Judge presiding over a tribunal to a current roster of 21 Judges overseeing the Employment and Labour Relations Court across thirteen stations nationwide. Its role in shaping the labour landscape cannot be overstated.

The ELRC’s legacy is not just in its achievements but in its unwavering commitment to adapt and evolve. As the dynamics of workplaces continue to shift, the ELRC’s responsibility remains steadfast – to ensure that the principles of justice and fairness are upheld for each worker and every employer. The road ahead is rife with challenges, but by embracing them, the ELRC will undoubtedly pave the way for a future where workplaces are not just productive but equitable and just.

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