Employment disputes in Kenya are handled by the Employment and Labour Relations Court (ELRC), established under the Employment and Labour Relations Court Act No. 20 of 2011. The ELRC has exclusive jurisdiction over matters arising from employment relationships, trade union disputes, and collective bargaining agreements. It has the status of the High Court.

Mandatory Conciliation Before Filing

Before filing a claim at the ELRC, parties must generally attempt conciliation through the Ministry of Labour. Labour Officers are empowered to conciliate employment disputes. If conciliation fails, a certificate of unresolved dispute is issued, which is a prerequisite for filing at the ELRC in most cases. This procedural requirement is strictly enforced.

Unfair Dismissal: The Legal Standard

Section 45 of the Employment Act requires that a dismissal be for a valid reason and carried out through a fair process. Valid reasons include misconduct, poor performance, redundancy, and incompatibility. The minimum procedural requirement is that the employee must be notified of the allegations, given a reasonable opportunity to respond, and told the outcome.

Courts consistently set aside dismissals that were substantively justified but procedurally defective. Employers who fail to follow minimum procedural requirements expose themselves to compensation of up to twelve months’ wages under Section 49, in addition to terminal benefits and outstanding leave pay.

Redundancy: The Procedural Requirements

Redundancy is a valid reason for termination, but the Act imposes strict procedural requirements: notify affected employees and the relevant trade union one month in advance, consider alternatives, apply objective selection criteria, and pay redundancy pay of no less than fifteen days per completed year of service under Section 40. Failure to comply makes the redundancy unfair.

Time Limits

Claims under the Employment Act must generally be filed within three years of the cause of action arising. Delays in filing can prejudice a claim even if filed within the limitation period.

Remedies

The ELRC can award reinstatement with back pay, compensation in lieu of reinstatement, damages for breach of contract, payment of outstanding wages and benefits, and compensation for injury to dignity. Punitive damages are available in cases of egregious employer conduct.

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